Ehret v. Schuylkill River East Side R. R.

Opinion by

Mb. Justice Stebbett,

In September, 1886, the plaintiffs were in possession of a lot at southeast corner of Filbert street and Schuylkill river—part of the city gas works property—fronting about one hundred and fifty feet on said river and extending back about sixty feet, on which valuable machinery was erected for the purpose of distilling crude tar made by the gas works. They were then engaged in the prosecution of that business.

The railroad company defendant, having previously located its road on the lot, entered thereon by virtue of its right of eminent domain, and, as alleged by plaintiffs, took down all the machinery, removed some of it to points on the river bank in the southern section of the city, and some of it to Wilmington, Delaware; and, in consequence of removal and exposure to the weather, etc., said machinery became so worthless that it was afterwards disposed of by defendant company at very little more than the price of old iron.

Part of the machinery referred to was purchased from Warren, Lober & Co. in April, 1883, for $17,523. Other machinery was afterwards purchased by plaintiffs for the purpose of improving and enlarging the capacity of the plant.

Shortly before that, Michael Ehret, Jr., one of the plaintiffs, contracted with the city to purchase all the tar made at its Ninth Ward gas works, during the period of five years commencing July 1, 1883. He bound himself, his executors, administrators and assigns to furnish suitable receptacles for all the tar that would be produced daily, during said period, and thus prevent any overflow of the wells in said works, to remove said tar without delay in order to avoid interference with their operation, and to pay for said tar a certain price per gross ton of coal carbonized in the process of making gas at said works.

It was claimed that a vital part of Ehret’s contract with the city was that he should have the use of the adjoining premises in the way specified. The tar, as produced, was to be run from the gas works into plaintiffs’ tanks and other reservoirs so that they would incur no expense in its removal. The central situation of the Schuylkill wharf front enabled them to secure a full supply of barrels, without expense of hauling, and also enabled them to conveniently supply their customers with the products of their refinery. These and other facilities for handling materials as well as the manufactured products, etc., were of great advantage.

In their petition, filed November, 1886, for the appointment of viewers to assess their damages, plaintiffs averred their ownership of said machinery, and of the leasehold of the premises on which the same had been erected and used in their business. In December, 1889, the viewers awarded $43,153.53 damages in favor of plaintiffs, and both parties appealed. The court ordered that the cause should be put at issue for trial, etc., “ to determine what legal damage, if any, the plaintiffs may have sustained in consequence of the location of defendant’s railroad and the consequent taking and occupying by the defendant of the strip of ground .... described in the report of the viewers, and the construction of a railroad thereon, subject to the ruling of the court . , as to the date when the right of action accrued to plaintiffs, with the right of appeal by either party to the Supreme Court.”

This was the issue on which the case was tried. It does not appear that any question of title in plaintiffs to the lease, machinery, etc., or want of proper parties to the proceeding arose until a motion for nonsuit was made.

The cause was carefully and ably tried, and in a clear and comprehensive charge, calling attention of the jury to the facts and circumstances presented by the evidence and questions of law applicable thereto, etc., it was fairly submitted to the jury. Several points for charge were presented by defendant company, all of which, except the two recited in the 8th and 9th specifications of error, were withdrawn. These two points, after referring to the fact that the lease of the lot was to Michael Ehret, Jr., alone, that it contains a clause against subletting without consent of the lessor, etc., and averring that no consent to subletting or transfer to the other plaintiffs has been shown, etc., request the court to charge that the verdict must be for defendant. Both of these points were rightly refused. The covenant against subletting or assigning was for the benefit of the city. In the absence of any evidence that the city authorities objected to its lessee associating others with himself in the business contemplated by the lease, the defendant company has no just reason to object. It cannot be prejudiced by having two others joined with the lessor as plaintiffs. Moreover, the bald technical objection, grounded on alleged want of proper parties, came too late. It should have been raised, if at all, in limine, when the petition for appointment of viewers was presented,, or, at the very latest, when the issue was framed by the court. The 8th and 9th specifications are dismissed.

Several of the remaining specifications relate to the admission of testimony tending to show the additional cost entailed upon plaintiffs in receiving and handling the tar and other materials, etc., offered for the purpose of showing the value of plaintiffs’ lease of the lot appropriated by defendant, etc.

An examination of these specifications has failed to convince us that there was any error in admitting the evidence complained of. The circumstances of the case were somewhat peculiar—quite out of the ordinary course. We have already referred to the contract to take all the tar made by the gas works, etc. The location of the leased lot adjoining the works from which plaintiffs were bound to receive their supply of tar, at least to the extent of the production of those works, afforded facilities for economically handling supplies and disposing of products, that could not be had elsewhere. They were bound by Mr. Ehret’s contract with the city to take and pay for all the tar made at those works. These and other matters that might be mentioned were elements which evidently and properly entered into the consideration and determination of the value of the lease. It was part of the property taken by defendant company as locum tenens of the commonwealth, property for which defendant was bound to make just compensation to plaintiffs from whom it was taken. It is a mistake to say that the introduction of the testimony referred to was a covert attempt to recover profits. It was nothing of the kind. They sought to show that the lease was worth what they claimed, because it saved to them certain expenses in performing a contract which had been entered into because of the advantages that were afforded. Among other things, it was shown that, in consequence of the leased lot having been taken, it was necessary to convey the tar to the place where it was distilled by a specially constructed boat; that it was also necessary to erect temporary works for distilling the same, etc. On principle as well as authority we think such evidence was not improper. In Railway Co. v. Vance, 115 Pa. 327, testimony was received to prove loss of custom at a mill, not with the view of recovering the amount as damages but for the purpose of showing the extent to which the value of the mill property had been diminished.

Railroad Co. v. Getz, 113 Pa. 214, recognizes the right of owners of a leasehold to recover, as damages, the cost of removing their machinery.

In Kersey v. Railroad Co., 133 Pa. 234, plaintiff was lessee of a coal wharf, etc., on which machinery for handling coal was erected. The defendant constructed its railroad across the property, dividing it into two parts and so interfering with plaintiff’s sheds, runs and other appliances, that it became necessary for him to construct new ones, involving also the erection of a high single span bridge, etc. The operation of these new appliances involved considerable breakage of and increased cost of handling the coal. For the purpose of showing the value of his leasehold as it was before part of it was taken by the railroad company, the plaintiff was permitted to prove the cost of the substituted appliances, the extent of waste necessarily resulting from their operation and the increased costs of such operation. In that case our Brother McCollum speaking for this Court said: “ It is well settled that the proper measure of damages is the depreciation in the market value of the property caused by the location and construction of the railroad. But the elements to be considered in the ascertainment of this depreciation are as varied as the properties affected and the uses to which they are applied. A specification of all these elements is impossible, because they cannot be anticipated, and many of them remain to be developed in the course of the litigation consequent upon the taking of property by eminent domain. In the ordinary appropriation of- land for railroad purposes, the opinions of witnesses who are conversant with the property, and the general selling price of land in the vicinity, are received on the question of its value unaffected by the road and its value as affected by it. But this is not exclusive of other and in some cases better methods of proof. It may be stated as a general principle, applicable to cases of this sort, that whatever injuriously affects the property, as the direct and necessary result of the location of the road upon it, may be considered in the assessment of damages.”

These well considered and clearly expressed views apply forcibly to several features of the case before us, and serve to enforce the position that the evidence complained of was not only competent but perhaps the best that some features of the case were susceptible of.

Without referring more specifically to the 1st, 2d, 4th, 5th and 6th specifications we think neither of them can be sustained.

There was no error in sustaining plaintiffs’ objections to the offers recited in the 3rd, and 7th specifications.

An examination of the record with reference to each of the specifications, respectively, has led us to the conclusion that there is nothing in either of them that requires a reversal of the judgment.

Judgment affirmed.