DocketNumber: Appeal, No. 143
Citation Numbers: 47 Pa. Super. 613
Judges: Beaver, Head, Henderson, Morrison, Orlady, Porter, Rice
Filed Date: 7/13/1911
Status: Precedential
Modified Date: 2/18/2022
Opinion by
The defendant, in the exercise of its right of eminent domain, had appropriated a portion of the land of the plaintiff and constructed thereon a branch line of its railroad. After a jury of view had assessed the damages an appeal was taken to the court of common pleas, and from the judgment on the verdict rendered in that trial this appeal was taken. There was evidence tending to show that the damages suffered by the landowner resulted chiefly from the operation, of the railroad under existing conditions rather than from the taking of the strip of land on which it was constructed. There was also evidence tending to show that the chief business of the branch fine was in the transportation of coal from lands in the vicinity of the plaintiff’s property. Against the objection of the plaintiff the court received evidence to show the physical extent of the coal vein there operated and that it was small in area. The manifest purpose of such testimony was to convince, the jury that the coal would soon be exhausted, and as a consequence that the operation of the branch line complained of would not continue for any great length of time. We think such testimony, directed as it was to physical conditions, was relevant to the inquiry before the court and was therefore properly received. The first assignment is dismissed.
The fourth assignment alleges error in permitting a witness for the defendant to give his opinion as to the length of time during which the company would use its branch line and when it would be abandoned. Of course, any such opinion or estimate of time by the witness would be in no way binding upon the company. Having appropriated the land for railroad purposes, its right was to continue such use indefinitely, and the plaintiff’s damages could not fairly be lessened because of the opinion of the witness that the right would be abandoned within a short period of time. But as we understand the record, this testimony, on motion, was stricken out. Whilst such action does not always furnish a complete remedy for the injury done to a party by the receipt of incompetent or inadmissible testimony, there would remain no sufficient cause for a reversal unless it appeared to us that the hurtful impression produced on the minds of the jury by hearing the testimony complained of had not been obliterated by the subsequent action of the court. Whilst therefore we might be unwilling to reverse the judgment upon this assignment alone, as the case must go back for retrial for another reason, we think it proper to declare that the testimony complained of should have been excluded.
The fifth and sixth assignments complain of the charge of the court as to the general lines upon which the jury
Upon the cross-examination of the plaintiff he was compelled to testify, over the objection of his counsel, the price -at which he succeeded in selling the coal under his own land and that he obtained for it a larger price than that received by some of his neighbors. This fact was permitted to go to the jury and' they were subsequently instructed that they might properly consider it in making up their verdict although the plaintiff further testified, and in this he was not contradicted, that at the time he sold his coal the railroad was not there and had not yet been located. It seems to us manifest that the particular price at which the plaintiff was able to sell his coal might depend on many factors other than the location of the railroad. It might be fairly attributed in large part to his own native shrewdness in making a favorable deal; it might have been that the natural location of his property made his tract of coal especially valuable or desirable as compared with -other tracts in the same field. There are many other like illustrations that could be offered, all of which point to the propriety of the rule that the selling price of a particular piece of property is not evidence of the general market value with which alone juries are to deal in cases like the one before us.
In Pitts. & Western Railroad Co. v. Patterson, 107 Pa. 461, Mr. Justice Clarke thus stated the true rule on the subject, viz.: “The location of the land, its uses and products, and the general selling price in the vicinity are the data from which a jury may determine the market value. The price which, upon a consideration of the matters
Applying the principle of these decisions to the case before us we cannot' escape the conclusion that the learned trial judge fell into error in admitting the evidence referred to and instructing the jury that they might properly consider the price at which the plaintiff had sold his coal in making up their estimate of the damages sustained by him from the construction and operation of the railroad. The third and seventh assignments are sustained.
Judgment reversed and a venire facias de novo awarded.