Hankey v. Philadelphia Co.

Opinion by

Wickham, J.,

In the summer of 1895 the defendant, a corporation entitled to exercise the right of eminent domain, laid an eight inch gas pipe in and on a public road passing through the plaintiff’s farm, and also constructed a telephone line along the same highway.

No bond was tendered the plaintiff, nor was any attempt made to agree with him as to the damages. He was fully aware of what was being done by the defendant, and made no active attempt to stay the work, by bill in equity or otherwise. He is therefore estopped from depriving the defendant of the easement it acquired, but is clearly entitled to compensation, through a common-law action, for all the injuries he has sustained including those resulting from the permanent occupancy of his land. This right results from Art. XVI., sec. 8, of the constitution of 1874, and has been enforced by numerous decisions of our Supreme Court.

“ In such a case as this the damages should be determined on similar principles as govern in proceedings under the general railroad laws where land is taken, injured or destroyed by the company, and the parties are unable to agree as to the amount of damages. It would be grievous to the parties, certainly grievous to one or the other, if the damages could not be finally settled in one action: ” P. & L. E. R. R. Co. v. Jones, 111 Pa. 204; O’Brien v. R. R. Co., 119 Pa. 184. See also the very recent case of Thompson v. The Citizens Traction Co., 181 Pa. 131. The exceptional rule as to the measure of damages applied in Jones v. R. R. Co., 151 Pa. 30, does not govern the present case. In the case just cited the only injuries for which the plaintiff was held entitled to recover, were the deprivation of air and light caused by building a bridge above and across a city street, the abutments of the structure being on the defendant’s own land. Here, not only is there an actual taking and occupation of the surface and subsoil of a portion of the plaintiff’s rural land, over which the public have a mere right of way, but as well the diversion of water on and over his enclosed ground, injury to his fences, destruction of trees, and obstruction of driveways to fields by the gas .pipes. We therefore think that the ordinary well known rule, namely, to allow as damages the difference between the market value of the land immediately before the defendant’s entry and occupation and the value immediately thereafter as affected by the defendant’s entry, acts and occupation, is the one applicable in the present case: Thompson v. The Citizens Traction Co., supra.

A glance at the evidence, the rulings of the court during the trial, and the charge to the jury, shows that the case was tried from beginning to end on a wrong theory as to the rights of the plaintiff and the liability of the defendant. The action was treated as one of trespass pure and simple, in which damages were to be recovered only up to the date of the bringing of the suit; and the measure of damages to which the attention of the jury was directed was that applicable to an ordinary action of trespass. It was the duty of the court without being asked, to instruct the jury, at least in a general way, as to the true measure of damages, or at any rate not to even indirectly suggest an incorrect one.

In view of the fact that the permanent occupation of and injuries to the plaintiff’s land were largely excluded from the consideration of the jury, and also considering that no second action could be sustained, it may be seriously doubted whether the appellant has been really injured, that is, whether the compensation awarded was not less than would have been given if the court had laid down the correct rule. Under the circumstances however, this is a matter with which we have nothing to do, and we are therefore constrained to reverse.

We need not discuss the assignments of error in detail, but will add that, at the next trial, damages should not be specifically allowed, as was done in. the first, for things which are merely elements in working out the problem as to how far, i f at all, the farm has been depreciated in value. It may be said further, that tests not employed in the trial already had, will have to be used in determining the competency and qualifications of witnesses called on to testify to the matter of damages.

Judgment reversed and venire facias de novo awarded.