Neff v. Pennsylvania Railroad

Opinion by

Mr. Justice Mestrezat,

In the view we take of this case, the declarations of contractor Cams become immaterial to the issue between the parties, and although the testimony admitted to show his statement relative to the construction of the bridge should have been excluded, yet it did the defendant no harm and its admission is therefore not reversible error. For more than seventy years, the owners of the servient property, including the defendant company, had by their acts construed the clause in the elder Neff’s deed as giving the owner of the dominant property “ the privilege of keeping open the lane to the great road for the use and convenience of whomsoever may from time to time be the owner or occupier of the river tract of land.” Conceding it to be true, as claimed by appellant’s counsel, that the bridge was erected by the company as required by its charter to connect the two pieces of land and that it was used for that purpose, yet it is an undisputed fact that the bridge was constructed in the line, and became a part, of the lane, and was thereafter used by the owner of the B. K. Neff or river tract of land precisely as the ground for which the bridge was substituted had been used. The defendant company made no objection to this use of the lane, and for fifty years acquiesced in the claim of the right to a permanent casement over it by the owners of the B. If. Neff tract of land. The construction, therefore, given by the interested parties to the clause in Jacob Neff’s deed giving the right to the use of the lane is apparent and shows conclusively that a permanent easement was intended to be granted to the “ owners and occupiers” of the tract of land now owned by the plaintiff. The practical construction thus given the clause of the deed in question not being inconsistent with its terms will be adopted so as to give effect to the design and intention of the parties.

The third assignment complains that the statement is not sufficiently comprehensive to admit the testimony offered in support of its averments. The establishing of the road and the adverse user of it for the prescriptive period are averred in the statement and any competent and relative testimony in support of both or either of these averments was admissible. The statement alleges that Jacob Neff, senior, had established the private way many years prior to the construction of. the defendant’s road and the testimony, the admission of which is complained of in this assignment, tended to establish the fact.

The plaintiff’s easement was not interfered with until the defendant removed the bridge in 1900. The construction of the defendant’s road in 1850 did not deprive the plaintiff of the nse of the lane, and in no way impaired his enjoyment of it. The erection of the bridge in 1851 to span the cut made necessary in the construction of the railroad continued to give the plaintiff and his predecessors in title to the river tract of land the use and enjoyment of the private way as unimpaired and unobstructed as they hitherto had. No act therefore of the defendant company had invaded the rights of the plaintiff to the easement, and no injury had been done him by depriving him of the use of the lane until the company destroyed his way by the removal of the bridge. Its liability was then fixed and the plaintiff’s right of action accrued.

The private way was appurtenant to the plaintiff’s land, and when the defendant company took possession of it by removing the bridge it was responsible to the plaintiff for the damages he sustained: Philadelphia, etc., R. R. Co. v. Williams, 54 Pa. 108. “ When the defendant closed up this alley and destroyed this easement,” says the court below (approved by this court) in Philips v. Philadelphia & Reading Terminal R. R. Co., 184 Pa. 538, “ it did not enter upon the land of the plaintiff, but it actually destroyed something that may or may not have been of pecuniary value to his property, and in which his property had a right, which is called an easement; that is, the right of passing to and fro to Division street.” This action is essentially a proceeding for the assessment of damages for land taken under the right of eminent domain. The measure of damages adopted by the learned trial judge was therefore entirely correct. The effect upon the plaintiff’s farm to which the way was appurtenant was the injury he sustained. If the market value of the tract of land was the same before and after the entry and taking of the lane by the defendant company, then the owner of the premises suffered nothing and was not injured. To the extent, however, to which the market value of the farm was depreciated by being deprived of the use of the lane, the plaintiff was injured and that was the measure of his damages. “ Under the charge of the learned court below,” says this court in Philips v. Railroad Co., supra, “the plaintiff was allowed to recover the full amount of the difference in value of his property before and after the taking of his alleyway leading to Division street. This easement was what was taken, and to the extent to which his property was injured in consequence of the taking, he was permitted to recover.”

The last assignment alleges error in the court below in not setting aside the verdict and granting a new trial. We discover nothing in the case, however, that would warrant us in exercising the power conferred by the act of May 20,1891, and in granting a new trial. This power, as said by our Brother Mitchell, in Schenkel v. Pittsburg, etc., Traction Co., 194 Pa. 182, is exceptional in character and only to be exercised in very clear cases of wrong or injustice which the court below should have remedied.

The judgment is affirmed.

Potteb, J., dissents.