Philadelphia & Camden Ferry Co. v. Inter-City Link Railroad

The opinion of the court was delivered by Garrison, J.

This award gives to the landowner the value of the land that is taken by the condemning party and compensation for the diminution in value of the residue of the tract that will result from such taking—i. e., for the difference in value of the tract before and after the taking. This is correct, and the award for such difference will also be presumed to be correct upon this writ, which is directed, not at what the award includes, but at what it does not include, viz., damages to the landowner for the loss of the emoluments of its ferry that will result from competition with the tunnel of the condemning party. The sole contention of the prosecutor is that, in addition to the award already made for injury to its tract, it is (to quote the brief of counsel) “entitled to damages for the diversion of its traffic.”

This contention cannot prevail.

A proceeding to condemn land is not in the nature of an action for damages. It is merely the prescribed mode of ascertaining the sum of money or price the condemning agent must pay to the owner of private property as the equivalent of that which will be taken or destroyed by the public use. Shamberg v. New Jersey Shore Line Railroad Co., 44 Vroom 572.

The price at which the owner of land so taken may be thus compelled to part with it is computed upon and circumscribed by its valuation as land calculated upon its most valuable available uses, into which also enter all the injurious effects of such taking upon the value of the residue of the tract. This in the present case has presumably been done. Diminution in the emoluments of the business conducted by the landowner upon such residue of his tract that will result from the establishment of a rival business upon the land that is condemned is not a land value or an element in the valuation of land. It is, on the contrary, an element of ordinary business competition such as would arise if such rival business were established upon any adjacent tract of land. Compensation *52 for the losses resulting from such competition would be in the nature of damages such as courts of law give for the redress of a wrongful act, and hence has no place in a procedure for the ascertainment of land values ancillary to the accomplishment of a rightful act. Where, as in the present, case, the business conducted by the landowner upon the residue of its tract is by virtue of a franchise, such franchise, being property, cannot be taken or destroyed under eminent domain without compensation, but immunity from competition or from the results of competition is no part of such franchise, and hence is not property, and it is only for “property” taken that compensation must be made under the constitutional mandate touching eminent domain. “Private property shall not be taken for public use without just compensation” is the constitutional provision upon this subject. Const., art. 1, § 16.

The franchise to operate a ferry is taken.in this constitutional sense if the power to exercise or the means of exercising such franchise be destroyed under the right of eminent-domain, but the taking of land that is owned by a ferry company,, but is not used in the exercise of its franchise, neither destroys its power to exercise its franchise nor impairs its-employment of the means secured to it by its charter. The-taking of such land is not a taking of the ferry franchise, however much the emoluments of such franchise may be reduced by reason of the competitive use to which the land so taken is put. The difference between taking part of the property of a private owner and taking part of the profits of that owner’s business is fundamental in the constitutional aspect of the matter since it marks the distinction between constitutional compensation-in aid of the accomplishment of a rightful act and the recovery of damages for the redress of a wrongful one. The principle, the forum and the mode of procedure in the two cases are entirely distinct from the judiricial standpoint, even though the effects upon the landowner’s-pocket may, from the financial point of view, be indistinguishable. The proceeding to condemn his land does not take from a landowner any right to damages for the diversion of *53 traffic he may have. It simply does mot create such a right or provide any procedure for its recognition or enforcement. In legal contemplation the award in the. present case is not affected by the circumstance that the land of the ferry company that is taken by the tunnel company will be put to a use that will bring it into competition with the prosecutor’s ferry. The case would not be varied in principle if .the condemned land was to be used for a sehoolhouse, or for any other noncompetitive object, or even if the condemning party were to bind itself not to use its tunnel for the transportation of passengers, or for any other use that would bring it into competition with the landowner’s ferry. This principle is well established, and its application to the present case is free from doubt.

The cases illustrative of this doctrine are collected in 18 Cent. Dig., tit. “Eminent Domain,” § 391, and in 15 Gyc. 734, where the text that is annotated curtly states that “loss arising from the competition of the condemning party does not constitute an element of damage.”

The award of the commissioners brought up by this writ is affirmed, with costs.