
    PENNSYLVANIA AND NEW YORK CANAL AND RAILROAD CO. VS. ROBERTS.
    On a trial in Court of an appeal from the report of viewers the land owner may show that the Railroad Co. have actually appropriated ‘more land than is designated in the company’s draft and description.
    If the risk of fire from the ordinary use of the railroad is so great from the proximity of buildings that it decreased the market value of the property, damages should be allowed therefor.
    Assessed valuation of property, does not, as a rule, represent its actual market value, and hence the assessment of a particular property alone, is not evidence of its value.
    Where the company took none of plaintiffs land, and paid no damages for its first track ; when it takes plaintiff’s land, for its second track, it is liable for the depreciación of the land caused by the burden of fencing.
    The Court refused to allow a witness to be asked whether he was not a witness in a number of cases against the railroad company for the purpose of showing his bias or prejudice.
    Error to Common Pleas of Wyoming County. No. 177 January Term, 1881.
    Henry Eoberts had recovered in ejectment from the said railroad company; see 8 W. N. O. 6. He then petitioned for viewers, who awarded him $580 damages. The railroad then appealed, and the Court directed the case to be put at issue, as in trespass quare clausum fregit, which was accordingly done. The railroad company filed a draft showing the land appropriated. Hpon the trial the Court admitted evidence tending to show that the company occupied more land than described in the draft. This is the subject of the first and second errors. The Court admitted evidence to prove that the market value of the farm had been decreased owing to the danger of fire on account of the proximity of the railroad to the buildings. This ruling of the Court is the subject of the third, eighth and twelfth errors. One of plaintiff’s witnesses having testified as to the value of the land ; defendant proposed to ask him whether he had not, as the township assessor, placed a much lower valuation on it, after taking an oath that he would value the land at what it would sell for. The Court sustained plaintiff’s objection, saying:
    That question need notbe answered, for the reason that the witness is not asked to state whether he had put upon the land a valuation which he regarded and intended at the time he made it as ,-an estimate of its marketable value. This matter comes up in a shape to bring our assessment system somewhat into disrepute; but nevertheless it would not be fair in a trial of this kind to •try the custom of assessment. It is true that the Act of Assembly requires an assessor to take an oath of the kind which the counsel has read, or one very much like it, I think ; but it is -a fact of common notoriety, that by the instruction of County Commissioners, or otherwise, a system of assessment has been .adopted that is not in fact based upon marketable value, and it would not be a proper cross-examination here to examine an .assessor as to a particular assessment, unless he should testify that he at the time intended it as a valuation according to the mai'ketable value of the property, and that should be first asked.
    This ruling forms the subject of the fourth, fifth, sixth and •eleventh errors. The land having been taken for a second track ; .and a witness having stated that fences were necessary ; defendant asked whether there was any greater necessity for a fence since the second track was laid than before. Plaintiff objected .as follows:
    We object to this question. Whether it is more necessary is not a question for us. If they build a railroad and run it along ■our land and don’t touch our property, we can’t recover for any damage, no matter how grievous the damage may be to us; but, if they take our property a strip one foot wide, that gives us a right to recover for the damage and a necessary fence. Suppose the second track had been built by another railroad company that wouldn’t make a fence any the less necessary; but the question is whether that fence is necessary to be put there now, not what might have been the case if a different set of circumstances had existed.
    The Court sustained the objection. The action of the Court in rejecting this evidence forms the subject of the seventh and ninth errors. Defendant recalled one of plaintiff’s witnesses for re-cross-examination, and asked whether he had not been a •witness in a number of cases in which this company .was interested in the matter of railroad damages, for the purpose of showing his interest or bias. The Court sustained an objection to the offer; and this forms the subject of the tenth error.
    The Court charged the jury inter alia as follows per:
    Ingham, P. J.
    Gentlemen oe the Jury : — This is an action by Henry Eoberts against the Pennsylvania and New York Canal andEailroad Company to obtain damages for land appropriated by the company to their own use. The plaintiff has given in evidence a. title from the commonwealth and possession for more than twenty-one years, and has also shown appropriation by the-company.
    A railroad company has the right under and by virtue of its charter and the laws of this commonwealth to appropriate to their own use such lands as are needed for the purposes of a railroad; but the law has also provided that the owner of the land shall have due compensation. In this case the parties not having been able to agree, you are to determine what compensation shall be paid by this defendant to the plaintiff for the land which the defendant has appropriated to railroad purposes.. Counsel for the defendant have presented seven points, of which the last seems to us naturally to come first — -
    7th. “That no evidence has been given in this ease from which you can find that the defendant has appropriated for railroad purposes any land of the plaintiff other than that described in the plea of the defendant and in the notice given to the viewers; by the attorney of the defendant, and attached to and'returned with the viewers’ report.”
    In bringing this action, the plaintiff set forth what he alleged was the land appropriated by the company defendant to railroad purposes; in their plea the company set forth that which they claim to be the true limit of their appropriation; we submit to you as a question of fact whether 'the plaintiff has proven the-appropriation alleged or whether the defendant has sjiown an appropriation of only so much land as is admitted in the plea.
    "We deem it unnessary to review the evidence ; you have been upon the ground, have had pointed out to you by surveyors the exact claims of each party — exactly how the whole property is situated : the testimony given is of a nature to be easily understood ■.and easily remembered ; you undoubtedly Lavo a better chance ■ of understanding all about the value of this land than the Court ■could have; and it is for you, from all the evidence in the cause, to determine what amount of compensation (if any) the plaintiff' ■should receive. We will, however, state to you the rule of law >in regard to the measure of damages. We are requested by the •defendant’s counsel to charge you—
    4th. The risk of fire being communicated from locomotives ■cannot be taken into consideration in estimating damages sustained by the plaintiff, arising from the construction of the railroad over his land.
    To this we answer that it is only exposure to fire from the •ordinary and careful use of the railroad that can be considered^ .and that only as it affects the market value of the land.
    The measure of damage is the difference between the values of •the farm as affected and unaffected by the construction of the track •of the railroad on the land of the plaintiff; that is, considering the ■advantages and disadvantages of the railroad, how much (if any) .has the farm of the plaintiff decreased in value by reason of the -construction of the track on his land.
    In regard to fire, we say to you, not changing what we have ■already said, but expressing a little more fully and clearly, that, in considering the decreased value of the farm caused by the Increased danger of fire (if any), you will not consider any • danger to be apprehended from a negligent use of the railroad. If a fire occurs from the negligence of the employees of the company, the owner of the land can recover full damages ; and therefore no allowance can be made for it now ; it is only exposure to fire from the ordinary and careful use of the road that you can • consider, and that only as it affects the market value of the .farm.
    These are the legal points which it is necessary for the Court to submit to you; and we have only to add this further, that you will give to this case a careful and impartial consideration, •not allowing any feeling of prejudice for or against the railroad ‘•company or the plaintiff to affect your verdict. You are placed in the jury-box for the purpose of doing justice, and justice can-mot be obtained if your minds are warped either by prejudice or by friendship. You have been upon the land, and that gives-you a better opportunity to understand the bearing of the evidence you have heard ; but you are not therefore to disregard the testimony of the witnesses-who have had knowledge of the-farm for years, lived in the neighborhood and know whereof ' they testify, not to substitute your own brief experience on the-ground for the evidence in the case, to all of which you will, give due weight, and render your verdict accordingly.
    Having determined the amount of damage which you think-should be given and the time of appropriation, add interest from; that time to the present.
    There was a verdict for the plaintiff and the railroad company then took a writ of error.
    
      F. Ansart, Esq. for plaintiff in error
    cited as to first and second, errors, Heise vs. Penna. R. R. Co., 62 Pa. 67. As to the third,, eighth and twelfth errors Sunbury & Erie R. R. vs. Hummel, 27 Pa. 99; Lehigh Valley R. R. vs. Lazarus, 28 Pa. 203. As to-fourth, fifth, sixth and eleventh errors; Bank vs. Fordyce, 9 Pa. 277; Hopkinson vs. Leads, 78 Pa. 396; Batdorf vs. Farmers' Bank, 61 Pa. 179; Jackson vs. Litch, 62 Pa. 451.
    
      Messrs. Little, Sittser & Hardiny, contra,
    argued that in this case-the railroad company entered and excavated along a steep side-hill, and thereby threw the top of the slope further back upon plaintiff’s land; and could not then avoid paying for it, by-saying that they did not wish to appropriate it all; Railroad Co. vs. Schollenberger, 54 Pa. 143; Lawrence’s Appeal, 78 Pa. 365. As to depreciation caused by danger to fire they cited,, Redfield on Railways, 307, note 11; Railroad Co. vs. Yeiser, 8 Pa. 366; Railroad Co. vs. Hill, 56 Pa. 460; Railroad Co. vs. Stauffer, 60 Pa. 374.
   The Supreme Court affirmed the judgment of the Common. Pleas on March 28, 1881, in the following opinion:

Per Curiam.

We have carefully examined the record in this case without' finding any substantial error in the rulings and answers of the" learned Court below.

Judgment affirmed,  