Lehigh Coal Co. v. Wilkes-Barre & Eastern Railroad

• Mines and mining — Culm—Personal property. Culm mined from its original place, and piled on the ground, is personal property. Eminent domain — Talcing of culm — Measure of damages. Where a culm bank is taken by a railroad company under the right ot eminent domain, the owner is entitled to recover the market value of the coal in the bank at the breaker, at the time the taking occurred, less the estimated cost of removing, cleaning, screening and preparing for market. In estimating the market value the advantage of getting a present lump sum, instead of instalments from time to time by sales of the coal, and also the just allowance to be made for wear and tear of machinery, interest on capital invested, etc., are proper subjects for consideration. Where property is taken under the right of eminent domain the owner is entitled to recover what the property of which he has been depi’ived would have produced to him, not what it may be worth to the person taking it.

Appeal, No. 430, Jan. T., 1897, by plaintiff, from judgment of C. P. Luzerne Co., Jan. T., 1893,' No. 50, on trial by court without a jury. Appeal from report of viewers. Tlie ease was tried by the court without a jury before Bennett, J., under the Act of April 22, 1874, P. L. 109. At the trial it appeared that the defendant took for railroad purposes portions of two culm banks. When W. A. Lathrop, a witness for plaintiff, was on the stand he was asked on direct examination: “ Q. Suppose that fill had been borrowed from some place in the vicinity there close by, how much would it have been worth to the defendant company to have borrowed it somewhere else, per cubic yard?” Objected to by defendant. The Court: I cannot see how that is testimony. I do not think either side would be bound by what it would have cost to have gone some other place. We sustain the objection. Plaintiff excepts and bill sealed. [7] The court found as to the measure of damages in an opinion in part as follows: 8. [A further consideration of this subject convinces us that while as we have already found, the plaintiff is entitled to compensation for the value of the coal in question, considered as such, as an element of damages in the cause, and for that purpose Avas entitled to show, as nearly as possible under the circumstances, the quantity and quality of such coal and the fair value thereof to itself at the time of the taking, yet, that the value as indicated by the method of showing it adopted by the plaintiff’s witnesses, is speculative, contingent and fanciful; that the plaintiff is not entitled to damages upon that basis, and that the testimony in question, so far as relates to the valuation of the coal, is incompetent and should be disregarded.] [2] It may be remarked that, in effect, this evidence assumes, (a), that this coal, amounting to a given number of tons, was all screened, cleaned and prepared for sale at the breaker in December, 1892, whereas it was still in place in the banks, and 'its exact quantity could not then be determined; (6), that the whole quantity thus assumed to have been prepared could have been sold at the breaker at going rates in December, 1892, for the daily or monthly output of these less salable sizes, whereas the preparation of all this coal was then impossible and the prices were fluctuating; (c), that the cost of production would have been a given amount per ton, although no coal from these banks had been thus prepared at that place, and the requisite machinery for that purpose did not there exist; (d), that the whole amount of the price for this coal would have been presently receivable in 1892, whereas at best it would only have been received in monthly instalments, according to production, during a term of years; and finally, it involves, as the then present value of the coal, (e), the assumed profits of combined capital, consisting of coal in place, money and competent supervision, and makes no allowance for the risks and losses incident to business enterprise. We know of no authority justifying this basis of compensation or method of estimating damages in cases of the taking of propert}1, under the right of eminent domain, and that there are none we deem it sufficient to refer, without further comment, to the case of Becker v. Railroad Co., 177 Pa. 252, and the principles and authorities there enunciated and cited. We do not regard as in point the cases of Coleman’s Appeal, 62 Pa. 279, Ege v. Kille, 84 Pa. 340, Coal Co. v. Rogers, 108 Pa. 147, and McGowan v. Bailey & Co., 179 Pa. 470, which hold that under particular circumstances such a,s existed in those cases, — neither of them being a taking under the right of eminent domain, — the value of ore or coal in place may be taken to be its value at the pit’s mouth or in the market, as the case may be, less the cost of putting it there. Each of those cases recognizes the true rule to be the value of the mineral in place, not complicated with the question of the cost of production, wherever the formei! can be shown, without reference to the latter; and as pointed out in Coleman’s Appeal, the method there allowed of showing value in place results in producing too great a value, in not making a reasonable deduction from the price of the mineral mined or marketed, for the profits of capital and the value of personal skill and superintendence, as well as cost of labor and machinery, where such capital, skill and superintendence are employed. See also, Fulmer’s Appeal, 128 Pa. 24. But aside from the difference between the nature of those actions and the one at hand, the latter is to be distinguished in a marked degree from the former. There the taking was from day to day, the mineral was actually marketed and the exact cost of production, as well as the market prices produced, was definitely known and ascertainable, while here the taking was all at one time, and of the coal in its then condition; it was neither screened nor marketed, nor will it ever be, nor will the exact amount of coal ever become known. It is therefore not to be considered as screened coal worth a certain price, as such, for the purpose of ascertaining its value unscreened. It is to be taken just as it was and as it will remain. Finally, the fact that no sales of culm banks for a fixed consideration, not depending on the quantity of coal to be produced, had been made, and the absence of a general soiling price, do not prevent the fixing of a price. In the case of the taking of land, the market value may be shown from the opinions of men of experience and judgment who are acquainted with the property, although no sales have been made anywhere in that locality : Curtin v. Railroad Co., 135 Pa. 20. So here, evidence of men of experience in the coal business, having knowledge of culm banks and of the one in question, is competent to establish the value of this coal. One of the witnesses for the defense, Mr. W. F. Dodge, having this knowledge, in part from personal examination of these banks, and in part from hearing the evidence of the tests, did testify as to the value of this coal, recognizing the principle that its value was to be determined, not by the amount of profits that might have been made out of it by screening the coal, but upon the basis of what it was fairly worth for coal purposes, taking into consideration the facts* that it would require capital and labor to prepare the coal; that there would be changes in the market value from time to time, and that the investment, of capital and the conduct of the business would be accompanied with more or less risk in connection with the prospects of a successful enterprise. Although his testimony was predicated of the correctness of the estimates as to quantity and quality given in evidence in behalf of the plaintiff, it is equally worthy of consideration, and competent as to a lesser quantity of coal found to have existed, making due allowance for that fact. Judgment for plaintiff for $3,780. Plaintiff appealed. Errors assigned among others were (2) portion of opinion as above: (7) ruling on evidence, quoting the bill of exceptions. The measure of damage is the market value of the coal, less the cost of preparing it: Coleman’s App., 62 Pa. 279; Graham v. Pittsburgh, etc., R. R. Co., 145 Pa. 504; Ege v. Kille, 84 Pa. 340; Coal Co. v. Rogers, 108 Pa. 147; R. R. Co. v. Butts, 36 Am. & Eng. R. R. Cases, 673 ; Montgomery County v. Bridge Co., 110 Pa. 54. The court below did not err in its finding and its method of finding the damages awarded to the appellant, i. e., by refusing to allow speculative damages : Becker v. R. R., 177 Pa. 258; Schuylkill TStav. Co. v. Thoburn, 7 S. & R. 421; R. R. v. Balthaser, 119 Pa. 472; Searle v. R. R., 38 Pa. 57. The market value of a thing taken fixes the measure of damage ; it is not fixed by price obtained in particular sales: R. R. v. Patterson, 107 Pa. 461; Ry. v. Vance, 115 Pa. 825; Cur-tin v. R. R., 135 Pa. 20.