Birch v. Lake Roland Elevated Railway Co.

Injury to Property from Elevated Railway—Measure of Damages— Evidence. An elevated railway was constructed in the city of Baltimore under an ordinance which provided that the company should be responsible for injuries judicially ascertained to be inflicted thereby upon private ' property. In an action by the owner of land abutting upon a street • used by the elevated railway'to recover damages, held, that if plaintiff’s property was injuriously affected by the construction of the railway, he was entitled to recover, and the measure of damages is the difference between the rental or usable value of the property without the railway and said value as affected by the existence of the railway. , In such case, if plaintiff’s property was built for a livery stable and in its existing condition is available for that purpose only, he is entitled to recover for the diminution in the rental value of the property for the purpose of a livery stable. In the above action evidence is admissible on the part of the plaintiff to show that after the construction of the elevated road he had reduced the rent of the premises reserved by a lease, because he and his tenant believed that the railway would have an injurious effect upon the usable value of the property.

Appeal from the Court of Common Pleas. At the trial the plaintiff offered the following prayers : Plaintiff's 1st Prayer.—The jury are instructed that by the terms of Ordinance No. 23 of the Mayor and City Council of Baltimore, approved April 8th, 1891, read in evidence, the defendant was authorized to build its elevated railway on North street, upon the express condition that it should be responsible for injuries judicially ascertained to be done to private property by the construction and use of said elevated railway ; and if the jury shall find from the evidence that the plaintiff, at the time of construction of said elevated railway, was the owner of the leasehold estate in the property known as “No. 206 and 208 North street,” as shown in the evidence, and is still such owner; and if the jury shall find that the said property has been injuriously affected by the construction or use of said railway, then the plaintiff is entitled to recover in this action, and the measure of damages in the difference between the rental or usable value of said property without said railway and the rental or usable value thereof as affected by the existence of said railway. This prayer was modified by the Court by inserting the words “ market value,” instead of “ rental or usable value” in the final clause relating to the measure of damages. Plaintiff ’ s 2nd Prayer.—If the jury shall find from the evidence that the property of the plaintiff described in the declaration was adapted for use as a livery stable, and had been for many years used as a livery stable, and that the construction or use by the defendant corporation of its elevated railway on North street has diminished the rental or usable value of said property for such purposes, then the defendant, by the express condition of Ordinance No. 23, approved April 9th, 1891, read in evidence, is responsible to the plaintiff for such diminution of the rental or usable value of the property for the purposes of a livery stable, and it is no defence to this action to show that by tearing down the said livery stable and erecting upon the lot a building suitable for some other business, the plaintiff might make the rental or usable value of said property equal to or more than its rental or usable value before the construction of said elevated railway. (Rejected). Plaintiff’s jrd Prayer.—If the jury shall find from the evidence that the value of the plaintiffs property as described in the declaration as a livery stable has depreciated since the construction by the defendant of its elevated railway on North street, then the plaintiff is entitled to recover in this action the amount of such depreciation ; provided the jury shall further find that such depreciation was caused by the construction and use of said elevated railway. (Rejected). Plaintiff ’s ffh Prayer.— The jury are instructed that the plaintiff had a lawful right to rent or use his property described in the declaration as a livery stable, and has a right, notwithstanding the construction by the defendant of its elevated railway on North street, to continue to rent or use his said property for a livery stable ; and if the jury shall find that the construction, use and maintainance of said elevated railway has diminished the rental or usable value of said property as and for a livery stable, then the defendant is responsible to the plaintiff for such diminution or decrease notwithstanding the jury should further find that if the building on the lot of the plaintiff was torn down and a new building erected thereon suitable for some other business, the value of the plaintiff’s property might be enhanced thereby. (Rejected). Plaintiff’s 5 th Prayer.—If the jury shall find from the evidence that the construction or use by the defendant of its elevated railway on North street has rendered access to, or egress from, the livery stable owned by the plaintiff, and known as Nos. 206 and 208 North street, less easy, convenient or safe than such access or egress was before said railway was constructed, and that in consequence thereof the usable market value of said property as and for a livery stable has been diminished or decreased, then the plaintiff is entitled to recover; and the measure of damage which he is entitled to recover is such sum as the jury shall find from the evidence will compensate him for the diminished or decreased rental value or market value of his said property as and for a livery stable, caused by the construction or use of said railway. But on the other hand, that if the jury shall find that the construction or use of said railway has not rendered ingress or egress to and from said livery stable less easy, convenient or safe than such ingress or egress were prior to the construction and use of said railway ; and that notwithstanding said construction and use the property of the plaintiff, if repaired and put in good rentable condition, will rent or sell as and for a livery stable for as much as before the construction and use of said railway, then the plaintiff is not entitled to recover. (Rejected). The defendant offered the following prayers : Defe?uiants rst Prayer.—That unless the jury shall believe from the weight of the evidence that the market value of the plaintiff’s leasehold lot has been diminished by the construction and maintenance of the elevated structure of the defendant and the inclined approach to the same, then their verdict must be for the defendant. (Granted). Defendant's 2nd Prayer.—That the jury cannot allow the plaintiff any damages for any alleged obstruction of North street, or any alleged interference with access to plaintiff’s property by the construction and operation of a double track electric surface railway opposite or near the plaintiff’s lot. (Granted). Defendant s jrd Prayer.-—That there is no evidence in the cause that the plaintiff has suffered any loss of rent from his property by reason of the construction and operation of the defendant’s railway. (Rejected). Defendants fh Prayer.—That in determining the question of alleged pecuniary loss to the plaintiff the jury must consider the benefits, if any, of the railway of the defendant to the plaintiff, and they may assess such benefits as it is fairly and reasonably apparent that the property of the plaintiff has received from the building and operation of the defendant’s railway, other than the general benefits to the community, and the jury cannot indulge ill vague speculations or conjectures ; and if they shall find that said advantages to said property, if they find any, equal or exceed any injury to said property, if they shall find any, then their verdict must be for the defendant. (Granted). Defendant's 5th Prayer.—The defendant prays the Court to instruct the jury, that the provisions in regard to the payment of damages by the defendant contained in Ordinance No. 23, approved April 8th, 1891, do not make the defendant liable for any but legal damages, or for any other damages than-those provided by Article 23, section 169, of the General Railroad Law. (Rejected). The Court below (Harlan, C. J.) rejected all of plaintiff’s prayers as offered, and granted the defendant’s first, second and fourth prayers and rejected its third and fifth prayers. The Court also gave the following instructions in lieu of the plaintiff’s third prayer: If the jury shall find from the evidence that the market value of the plaintiff s property, as described in the declaration, has depreciated since the construction by the defendant of the elevated railway on North street, then the plaintiff is entitled to recover in this action the amount of such depreciation ; provided the jury shall .further find that the amount of such depreciation was caused by the construction and use of said elevated railway. The jury returned a verdict for the plaintiff for one cent damages, and plaintiff appealed.