
    MINE HILL & SCHUYLKILL HAVEN R. R. CO. VS. ZERBE
    The lessee of a coal vein, who is injured by the construction of a railroad, is such an “owner,” who is entitled to have his damages assessed by viewers; and consequently cannot maintain an action on the case for such injury.
    Error to Common Pleas of Schuylkill County. No. 126 March Term, 1852.
    The facts appear in the charge of the Court which was as follows per:
    Jordan, P. J.
    This is a special action on the case brought by the plaintiffs to recover damages from the defendant, which they allege have been sustained by them, in consequence of the construction of a railroad by defendant upon or across a coal vein leased to them by David Greenawalt by lease dated Oct. 1, 1843, but executed on December 12th, 1843.
    It appears from evidence in the cause that plaintiffs entered into possession of the premises demised to them and commenced operations ; that they removed some 8 yards of earth ; passed through some 15 yards of rock; drove 103 yards of gangway t put up a small shop ; and erected a schute for the purpose of screening their coal. They allege that defendants, with a full knowledge of all this, contriving unlawfully and unjustly to injure and prejudice the plaintiffs in the enjoyment of their vein of coal, and fixtures, and to prevent them shipping coal, entered upon the same, with their engineers and artisans, and constructed a railroad in so careless, negligent, and improper .manner, that their fixtures were destroyed and they prevented from mining and shipping coal.
    The defendants deny that they are guilty of these charges, and also plead, that the injury, if any, was committed by them, under and in pursuance of the provisions of several Acts of A ssembly, incorporating the Mine Hill and Schuylkill Haven Railroad Company. There are then gentlemen, you perceive two questions raised by the pleadings in this case; first, are defendants guilty of constructing the railroad; destroying plaintiffs fixtures, or any of ■ them, and preventing them from mining and shipping coal; second, if guilty, are defendants protected by the Acts of Assembly incorporating the company. The first is a question of fact for your determination ; the second a question of law for the Court.
    There is no principle of common honesty, or law that this Court knows of that will prevent one man from recovering from another compensation for an injury done him, or his property. The remedy may be mistaken, but the right itself remains. The plaintiffs as already stated, leased this vein of coal from Mr. Greenawalt on the 12th of December, 1843 for the term of five years. They were to open the vein; drive the gangway, and put up the necessary fixtures, for which they were to be compensated out of the coal mined, or to be mined by them. The plaintiffs have shown that they removed 8 yards of earth, worth $4 per yard ; that to drive through the rock was worth $18 per yard driving the gangway $4 per yard ; that the shanty or shop was. worth $15 ; the schute $100; air shaft $1 per yard. The mining; operations do not appear to have been prosecuted with much spirit or vigor. The vein of the testimony is believed by youi was a red ash vein of good quality varying from 2 to 6 feet in thickness. During the time plaintiffs worked, they took, out sonm 283 tons of coal, according to the testimony of Mr. Greenawalt.. The railroad, by. the construction of which it is alleged plaintiffs’ schute was destroyed, was first run in 1845 or 1846, and the grading commenced in June, 1846, and finished in 1847. If Mr. Lewis, be believed by you, the road was run; and stakes put up along the line of the road to designate its courses, and the height, 50 or more feet apart, and the grading commenced prior to the time-plaintiffs commenced putting up their schute, but after the timber for its construction was on the ground. Notice it appears, was given to plaintiffs or one of them, before the schute was put up, that if put up, the company would be compelled to remove it. The plaintiffs, however, proceeded to complete it, and used it until the navigation closed in the fall of 1846, when it was removed by men in the employ of the Mine Hill and Schuylkill Haven Railroad Go. That the defendants did enter upon the property leased to the plaintiffs by Greenawalt, and took down the schute erected by them is not disputed; but whether wrong fully and unjustly to-injure'and predjudiee them, will depend, upon what instruction the Court will give you, as to their right to. enter under the acts. incorporating the ‘ company; for if the defendants had the right to enter and destroy the plaintiffs’ fixtures and prevent them from operating there at all, or as advantageously as they could have done, had the road not been constructed, the plaintiffs cannot recover.
    “While this road vjás being made, a bridge was “ constructed, underneath which, the plaintiffs could pass their coal. Some offers were made to the plaintiffs by the agent of the company, that if they would agree to have the space in the road, over which a bridge had been made, filled up, the company would put them in as good condition as they had been prior to the road being-made. The plaintiffs, .however, insisted that they would have to be paid for the solante. If the defendants were not justified under the Acts of Assembly, incorporating the Mine Hill Company and the plaintiffs have not mistaken their remedy, the .amount of damage, if any, to which they may be entitled, must be settled by you, under the instruction the Court will give you. If the testimony of Mr. Fisher is believed the bridge, if it had been maintained and kept up by the company, would have accommodated the plaintiffs and enabled them to get away their coal. The company removed the bridge and filled up the space that had been left open. . The reason appears to have been that It would have been more expensive to keep up the bridge, than to erect the fixtures.
    The Court will dispose of the issue raised by the defendants’ ■second plea first; for if that be determined in their favor, it wall not be necessary for you to enquire into the amount of •damage doiae to them or suffered by them.. The Court refuses' to give the instructions prayed for in defendants’ first point ; and instruct you that the plaintiffs may recover in this form .of action; the plaintiffs who are mere tenants, or lessees of a coal vein, are not embraced in the act incorporating the company ; ithe act embraces owners of lands, and not tenants, such as the plaintiffs wei’e.
    The Court haviug instructed 'you that this action may be maintained by plaintiffs and that they were not bound to adopt the mode of assessing damages pointed out in the Act of Assembly referred to, you will determine from the evidence in the cause, the extent of the injury done to plaintiffs, by defendants,if any.
    In estimating the damages, should you allow the plaintiffs any, you will bear in mind when the lease commenced; when it •expired; at what time plaintiffs operations were interfered with by defendants ; to what extent and whethe? the construction of the road prevented them from the use of the vein of coal, or only ■compelled them to increase their expenditures by making different and more expensive fixtures, and imposed on them more labor. The company, if the testimony of Samuel Otto and Martin Zerbe is believed, promised to put up the schutes, or pay for them, if put up by Zerbe. It is contended by defendants, that the plaintiffs should not he allowed damages for the removal of the sehute, because its construction by the plaintiffs, was after they had notice, that the company would occupy the ground on which it was-erected. These circumstances may and should be taken into consideration by you in estimating the damages, but. with it, the consideration whether the point at which it was-erected was the least expensive and most convenient for plaintiffs’ operatioi s. They had a right to put up their fixtures at. the place they deemed most advantageous for them, and where-it could be done with the least possible cost.
    After the plaintiffs’ sehute was removed in the fall of 1846,. they ceased' to work there. Their lease would have expired in about 2 years from that time. It is only for this unexpired term of their lease, that they can claim to recover damages in this, action, and that only to the extent of the injury, sustained by them in consequence of the acts of the defendants. The value .of the fixtures or amount of work done, in opening the vein of coal do not form in the opinion of the Court the proper basis for estimating the damages. What, taking into consideration the quality of the coal, size of the vein, and facilities or disadvantages of working it, would plaintiffs have made during that period. The loss, if you should be of opinion there would have been any, from a reconstruction of the sehute at a different place, and getting their coal on the railroad, are items, the Court thinks may fairly enter into your consideration. If by the acts of the defendants, the expenses of the plaintiffs were increased, the increased expense would be a damage to them.
    In the construction of railroads and canals individuals sometimes suffer loss and inconvenience. These works are necessary to the improvement of the County, and development of its wealth. Without them we should not witness, as we now do, the stir, activity, and life we see in almost every part of the State. In laying down and constructing railroads, difficulties will occur, and where a corporation authorized by law to do certain acts, keeps within the limits of its authority, its acts are to be regarded as we would the acts of an individual. But where it .becomes necessary for a corporation or railroad company to use or destroy the property of au individual for their own advantage, they should render a just compensation.
    "Where, as in this case, notice was given not to erect the schute, It will operate to prevent the plaintiffs recovering from defendants, vindictive or exemplary damages; but will not relieve the company from the payment of damages commensurate with the extent of the injury done. The plaintiffs had a riglit to erect a schute ; it was necessary to enable them to prepare their coal for market; without it. their operations must either cease, or be prosecuted under very great loss and disadvantage. The object -of plaintiffs in erecting the schute after notice is a question -of fact for you. If its erection was with a view of carrying out their agreement with G-reenawalt, in good faith ; justice would require that they should be compensated for the injury done them ; but if their object was with a view to embarass the •company, they are not entitled to any favor.
    The jury rendered a verdict for the plaintiffs for $887.50.
    During the trial plaintiffs offered in evidence the lease from -Greenawalt, which was admitted under objections. Afterwards the Court under defendants’ objections, allowed plaintiffs to prove the value of the fixtures, including the value of driving tunnel, gangway and other improvements on the ground. Defendants proposed to prove by Greenawalt that he had given •notice to Zerbes that the company had laid out and staked out their road where they proposed to build their schutes, before they had erected them; for the purpose of proving that Zerbes knew of the appropriation of the ground by the company. The .-Court permitted witnesses to state any declarations of Zerbe, but ^rejected the notice; as G-reenawalt was not shown to be acting .for the company, and had parted with his interest in the land by the lease. Defendants proposed then to ask the witness, whether, df these mines had been properly worked with the advantage of .a railroad, the advantages would not have been greater than the damages arising from destroying the schute. The Court sustained plaintiffs’ objection to the offer.
    The Railroad Co. took a writ of error complaining of the ■foregoing rulings on evidence, and the rulings of the Court in not allowing them to show that the injury was done in the ■construction of their road and holding that they were liable in this action, and that Zerbe’s were not owners in the sense of the act.
    
      John Bannan, Esq., for plaintiffs in error
    cited Act March 24, 1828, P. L. 205; April 8, 1829, P. L. 137; April 7, 1830, P. L. 386; January 21, 1831, P. L. 26; April 3, 1832, P. L. 254; March 29, 1836, P. L. 229; Brown vs. Commonwealth, 3 S. & R. 273; Lehigh Bridge Co. vs. Lehigh Nav. Co., 4 Rawle 9, 23; Criswell vs. Clugh, 3 Watts 330; Hellings vs. Commonwealth, 5 Rawle 64, 68; Oliphant vs. Smith, 3 P. & W. 180; Shoenberger vs. Mulhollan, 8 Pa. 134; Boyer vs. Phila. & R. R. R. Co., 13 Pa. 497; McKinney vs. Monongahela Nav. Co., 14 Pa. 65.
    
      Hon. F. W. Hughes, Esq., contra.
    
   The Supreme Court reversed the decision of the Court below on January 17, 1853, in the following opinion per :

Lowrie, J.

The Act of Assembly to incorporate this company gives a special remedy to the “owners” for any land entered upon or occupied by the company for the purpose of making their road, and this suit is in trespass in the common form. One of the pleas is substantially that the acts complained of were done in-pursuance of the statute and the right of entry granted by it Of course the company had a right to prove their plea and if they had proved it, what would have been the result ? If it is immaterial, the judgment would still have been against them, on the plea of not guilty, which was found against them. If it contains a sufficient defence the judgment would still have been in their favor, notwithstanding a verdict against them on the other plea. The plaintiffs below say that it is immaterial because the special remedy provided by the Act is given only to “owners” of land and not lessees which they are. But this is too strict a construction of the remedy provided. He is an owner of land in the meaning of the law, who has any interest in it, that is affected by the entry of the company. And this result cannot be evaded by saying here, that the injury complained of, is of a character not contemplated by the law; for .the defendant’s plea offers to prove that it is, and the Court excluded them from the benefit of their plea, by declaring that the parties plaintiff' were not entitled to that remedy, being only lessees and not owners within the meaning of the law.

Where a witness shows that he is acquainted with the land, he may say whether or not, the injury to plaintiffs is exceeded by the advantage of the road to them. We see no other matter of evidence that requires correction.

Judgment reversed and new trial awarded.  