Robbins v. Scranton

Opinion by

Mr. Justice Potter,

This case was a feigned issue, on an appeal from the award of viewers appointed to assess damages by reason of the construction of a viaduct on West Lackawanna avenue, from Seventh avenue to Ninth avenue in the city of Scranton. The property of plaintiffs is not situated on Lackawanna avenue, but it is upon the west side of Eighth avenue about 120 feet to the north of Lackawanna, the lot being forty feet wdde and extending from Eighth avenue to the railroad tracks with which it connects by means of a switch in the rear of the building. The plaintiffs conduct a large flour and feed mill on the premises, much of the grain being shipped in, and the product out, over the railroad. Formerly the tracks of the Delaware, Lackawanna & Western Railroad crossed Lackawanna avenue at grade, and as there were seven tracks in all, at this point, over which passed about 270 trains per day, it constituted a most dangerous grade crossing.

For the purpose of removing this great menace to the lives of all who were compelled to use the crossing, the city constructed a viaduct. Previous to its erection, patrons from the west side of the railroad, who wished to drive to the mill of the plaintiffs, could, after crossing the railroad tracks at grade, turn to the left around the corner of Eighth avenue, and reach the premises in that way. Since the completion of the viaduct, the same class of customers must now cross the viaduct and continue one square farther to the east, to Seventh avenue, and thence, by way of Schnell street, go directly back one square to the property of the plaintiffs. They are enabled in this way to escape a dangerous grade crossing, but in order to do so, ai-e required to travel two squares farther, that is, go one square beyond, and then one square back, to the mill. In returning to the west side of the tracks, the same class of patrons, in addition to escaping the crossing of the tracks at grade, find the grade of Lackawanna avenue from the railroad to Ninth avenue has been very much improved by the construction of the viaduct.

The only reason which plaintiffs have for complaining of the improvement is the fact that access to Lackawanna avenue at grade at the end of Eighth avenue, is, as we have just pointed out, cut off by the location of the viaduct, and patrons from the west side of the tracks are obliged to travel two squares farther in order to drive to the doors of the mill. Of course^ the building of the viaduct did not in any way affect the approach of patrons who came from the east, or the north, or the south. Its only effect was upon those desiring to use Lackawanna avenue, as a means of travel, to and from the west.

The ordinance providing for the erection of the viaduct was approved November 17, 1900, work upon it was begun April 27, 1903, and it was finally completed August 5, 1904. But access from the end of Eighth avenue to Lackawanna avenue, with teams and wagons, was no longer practicable after May 12, 1903. The sidewalks remained unobstructed so that foot passengers could go and come in that way.

Immediately opposite plaintiffs’ mill an alley twenty feet wide, called Schnell court, ran from Seventh to Eighth avenue parallel with Lackawanna avenue. By resolution of councils, approved March 14, 1904, it was ordered that Schnell court, between Seventh and Eighth avenues, be opened to a uniform width of fifty feet, and the work of widening was done in June or July, 1904, although the grading does not appear to have been completed until October, 1904. The result was to give plaintiffs the benefit of a street fifty feet wide, beginning directly across Eighth avenue from their property, and extending to Seventh avenue, which crossed Lackawanna avenue at grade, at the point where the elevation of the viaduct began.

The proceedings were somewhat prolonged, but the building of the viaduct and the widening and grading of Schnell street may, we think, under the evidence, be fairly regarded as part of the same general plan, by which it was sought to benefit the public, and minimize the inconvenience to the plaintiffs and other property holders in the vicinity, as much as possible. There could have been no object in improving Schnell street, and converting it from a narrow alley into a wide thoroughfare, except to improve tbe means of access to the end of the viaduct. Schnell street led directly from plaintiffs’ property to Seventh avenue, by which the viaduct could be directly gained. Necessarily, the viaduct had to bo elevated, and if the property on Eighth avenue was to get any advantage from the overhead crossing, an easy grade must be opened by which it could be reached. Schnell street afforded this approach.

This court held in Mellor v. Phila., 160 Pa. 614, that under a proper construction of article XVI, section 8 of the constitution, compensation for property injured by public works is not limited to abutting property, but applies to any works sufficiently near to make the injury proximate, immediate and substantial. But unless the injury is so obvious as to admit of comparatively easy calculation as to the extent of the diminution of the value of the property, it may not fairly be considered as covered by the constitution. Remote or speculative losses in the conduct of a business do not constitute a legitimate basis upon which to estimate damages to the real estate. In the present case, not an inch of ground was taken from plaintiffs, and there was no interference with the conduct of the business, except in so far as it was conjectured that some of the patrons upon the west side of the tracks might be deterred from driving to the mill, because they would have to use the viaduct which would carry them one square farther to the east, before turning to the mill, than when they were at liberty to risk the crossing at grade. It would seem to be a fair inference that this great public improvement by which the grade crossing was avoided would enure to the benefit of the patrons of the plaintiffs’ mill, as much as to any other portion of the public; and would rather tend to draw business to the mill from the vicinity west of the tracks, than otherwise.^ But at any rate the jury should have been allowed to compare the situation as it was after the completion of the entire scheme of improvements in connection with.the viaduct, with that which existed before its construction. Admittedly, none of the plaintiffs’ property was taken, and the only question was whether it was injured, and if so, to what extent. The problem before the jury was to determine whether the effect of the improvements as a whole had been to work any proximate, immediate and substantial injury to the value of the real estate. As we. have said, before the viaduct was built the patrons coming from the west had to run the gauntlet of the grade crossing, but when that was passed they could turn directly into Eighth avenue, and in that way reach the mill. After the viaduct was completed they could cross the tracks in peace and comfort, but had to travel about two blocks farther in all, to pass over the viaduct and back to the mill. Was this a drawback as compared with the former method, and if so, was it a substantial one, sufficient to depreciate the value of the real estate of the plaintiffs ? Only the retail portion of the business was affected, and of that, only the trade of the patrons on the west side of the tracks was concerned in the change. When the trial judge excluded the testimony in regard to the widening and grading of Schnell street, he prevented the jury from considering the situation as it actually existed when the whole scheme of improvements at that point was completed by the city. It was a fair question for the jury to determine whether or not the substitution of a safe way over the tracks, even though it were a little longer, did not fully compensate in its effect upon the market value of the plaintiffs’ property, for the taking away of the nearer, yet extremely dangerous, method of approach from the west, by means of the grade crossing as it existed before the viaduct was built. The beneficial effect of the viaduct in safeguarding the patrons of the mill, who approached from the west, and the possible injury to the trade by deflecting it from a direct approach, were so interwoven that it was not possible to ascertain one, without considering the other.

The court below applied to this case the rule as to the time for estimating the damages, which properly applies when property is actually taken under the right of eminent domain. But no property was actually taken here, and the degree of injury, if any, which was inflicted could only be determined after the entire plan of improvement had been worked out. We can see no good reason for attempting to confine the estimate of the injury to the conditions as they happened to exist on May 12, 1903. The scheme of improvement in connection with the building of the viaduct was by no means complete at that time. If as a result of the entire plan of improvement, the plaintiffs were afforded safe and convenient access to their property, they could not be said to have suffered any permanent, substantial and proximate injury, as the result of the change.

The first, third and fourth assignments of error are sustained and the judgment is reversed, with a venire facias de novo.