Opinion
03-05-1895
PENNSYLVANIA, P. & B. R. CO. v. TRIMMER.
Henry S. Harris, for complainant. O. H. Beasley, for defendant.
Bill by the Pennsylvania, Poughkeepsie & Boston Railroad Company against Augustus Trimmer. Decree for defendant.
Henry S. Harris, for complainant.
O. H. Beasley, for defendant.
BIRD, V. C. The complainant presents two reasons for coming Into this court for relief: One is that two of the four piers which were constructed in order to complete the viaduct across the Delaware river were built under the mistaken conviction that the defendant did not own the land; the other is license or permission from Trimmer to proceed with the construction of said piers until he should notify the plaintiff to the contrary. I find nothing in the case to justify me in believing that the original company, under which the complainant claims, considered whether Trimmer or any other person was the owner of the land upon which the two piers on the New Jersey side of the center of the river Delaware were erected, or that it had any conviction or belief with respect thereto. There is nothing to show that it made the slightest Inquiry upon this subject. It is true that upon this hearing it produced the deed under which Trimmer claims title to the land adjoining, and demonstrated by an actual survey from that deed that the survey and the boundaries of his land are limited to certain heaps of stone, at points designated in his deed as at low water, or at the water's edge, but there is nothing to show that any Investigation respecting these important facts was undertaken before preparations for the present hearing, or, at most, before 1889, seven years subsequent to the construction of said piers. Therefore, upon the ground of mistake, I think the complainant has failed.
Has the complainant succeeded any better with respect to the allegations of license? I think, when a person excuses what would otherwise be a trespass upon the ground of license, such license should clearly be established. The original company under which the present one claims title entered upon the premises of the defendant with a high hand, and an apparent total disregard of his legalrights. I have searched in vain for some slight evidence of knowledge upon the part of Trimmer of the encroachments upon the part of the company upon his land which he did not object to, and so become bound under the doctrine of acquiescence, but nothing of the kind is disclosed. Nor am I satisfied that there was any direct license or permission given by Trimmer for the erection of these piers, or for any other trespass upon his lands. The most direct and unequivocal testimony upon this point is that of Stanton, who was the superintendent of the Pennsylvania, Slatington & New England Company, which is the company who committed the trespass complained of In 1882. Stanton says that in May or June of that year he was at Columbia, and met Trimmer and Ward, and that the subject-matter was then under discussion between them. He says that, although they did not agree as to what should be done, yet Trimmer told him, in Ward's presence, that he might proceed with the work until he notified him (Stanton) to the contrary. He says that he only saw Trimmer on two occasions, and that he thinks work was begun on the piers then. However, he limits it to the work on the piers in the river, but saying not on the piers on the land of Mr. Trimmer. On this occasion Mr. Ward was present Stanton was asked to state what passed. He says: "Mr. Ward tried to settle with Mr. Trimmer for the right of way, and agree upon the price. They reached no agreement, and Mr. Trimmer said at that time what work must stop, and I said to Mr. Trimmer that, inasmuch as the negotiations were going on, I thought he ought to allow them to go on. He said, after some little hesitation, that he would allow them to go on. Before I left I said, 'Won't you give us in writing when you want us to stop,—won't you write us?' and he said he would do so; he would write me. The work was going on then, working on one of the piers, which Mr. Trimmer knew it was being builded on his land, which he claimed." He says that after this interview he saw Trimmer about the work often. Notwithstanding he had previously said that, at the time of these negotiations, they were only at work on the piers in the river, he subsequently says that, at the time of these negotiations, they were working on Mr. Trimmer's land. He says: "I went with Mr. Ward to see Mr. Trimmer, because Ward thought that I might help with the negotiations." Stanton had heard from Danford that Trimmer was objecting to their proceeding with the work on his land. Having heard this, he says that his object in seeing Trimmer was to procure from him the consent that the work might continue. At this point I think that I ought to observe that these last statements from Stanton show that it was later than May or June when he had this interview with Trimmer. It is perfectly clear from the testimony of Ward, as well as of Trimmer, that Trimmer and Ward did not meet with respect to these negotiations until in harvest time, or after the 4th of July; and that when they did meet, according to all the testimony, considerable work had been done upon the piers on the New Jersey side of the river. Ward went to see Trimmer, and found him in his harvest field. Besides these facts, Stanton, later on in his testimony, says that the company had been doing more or less work all the time previously.
In this very connection I ought also to remark that an effort has been made to prove that Mr. Trimmer was present several times a week from the very commencement of the work on the New Jersey side of the river, which Mr. Trimmer himself emphatically denies, saying that he did not know that they had commenced work there at all until after the 4th of July, in the year 1882, and Stanton says that he (Stanton) had been there very frequently up to that period of time, but that he never had met Trimmer before he met him with Ward, at this Interview above named. This must put out of the case the insistment that Mr. Trimmer was apprised of what the company was doing upon his land before harvest time of that year, which it is well known was in the early part of July. The testimony shows that one Danford had contracted with the company to erect these piers. Stanton, as has been said, states that he was there once a week, or at least once in every two weeks, and that after the alleged Interview with Mr. Trimmer, in which Trimmer consented that the company might go on with the work, Danford and Danford's men told him that Trimmer was objecting to their proceeding. This is in full corroboration of Trimmer's statement, and of all the circumstances in the case as developed by the testimony. As we examine the testimony of Mr. Ward, who was the agent of the company to purchase the right of way, we will see very clearly that the interview which Stanton speaks of was, as I have Intimated, much later than May or June; for he says he went, at the instance of Mr. Ward, to assist in completing the negotiations with Trimmer. The plain purport of Mr. Ward's testimony is that he had no interviews at all with Trimmer until after the 4th of July. At one of these interviews it appears that Ward proposed to Trimmer to give him $500, in order to obtain his consent that they might go on and finish the piers, and that, when the amount of compensation for his land was ascertained, the company should have credit for the $500. The testimony before me is by no means conclusive that Mr. Trimmer accepted the offer. Nor is there any evidence that the money was ever paid or tendered to him. Ward says that he left in the early part of September, and that these negotiations with Trimmer, in which he offered him the $500 as stated, took place about one week before he left. Upon the question of license or permissionfrom Trimmer, the testimony is as follows: "By Ward: Q. What was said by you to him about going on with the work? Try to remember what that was. A. I can't recollect the conversation. I think that I asked Mr. Trimmer to allow us to go on with the work,—to go on until such times as we should come to some understanding about it. Q. What did he say? A. He said, 'You can go on until such time as I notify you to stop.' I came back and notified Mr. Danford. Q. This was the latter part of August or early in the month of September? A. Yes, sir." All this evidently would not have taken place with Ward, had there been any definite understanding between Trimmer and Stanton previously that Stanton speaks of, unless Trimmer had revoked his license given to Stanton, since it is very manifest that 'Primmer had been objecting to proceeding with the work. The language employed by Mr. Ward, when he says that he offered $500 to Trimmer to get his consent that they might proceed to finish the work, establishes the fact that Trimmer was all the while objecting. This question was put to Ward: "Q. You started to build these piers without any consent of Mr. Trimmer, did you not? A. Yes; I do not think we ever got any actual consent of Mr. Trimmer, or any objection by Mr. Trimmer either." As above stated, however, Stanton says that Mr. Trimmer had objected. Trimmer denies having given any license or permission to Stanton or to any one else. Trimmer says that the first he heard of their commencing operations on the New Jersey side of the Delaware was about the 4th of July, and that, about the 7th or 8th of July, Ward called upon him; that it was in hay and harvest time; and that he was so busy that he could not then go and look after the matter. He called again, and Trimmer was in the harvest field. They went from there to Mr. Shipman's office in Belvidere, with the view of negotiating for the right of way. I should observe that Ward in no part of his testimony corroborates the statement of Stanton respecting the interview of the latter with Trimmer in Columbia, nor was he interrogated about it.
A consideration of the admitted facts, the preponderance of testimony as to those that are seriously questioned, and all the circumstances of the case, lead me to the conclusion that nothing took place to justify the company in supposing that it had the license or permission from Trimmer to proceed with their Work upon his land. The grounds upon which alone this court can entertain jurisdiction not having been established, the case might properly end here. But as the history of the case as developed before me justifies the belief that whatever may be the result of the investigation in this court the opinion of the court of last resort will be sought, it will be proper for me to determine the only remaining question presented by the bill and the evidence in the case, in order to save the necessity of sending it back to this court to determine that point; that is, ascertaining the value of the land or the proper compensation to be paid to Trimmer. The line of the railroad crosses the lands of Trimmer upon the north side of a street called "Columbus Street," in the village of Columbia, located about eight miles north of Belvidere, on the banks of the Delaware. It crosses his land so near to the said street as to cut in twain lots which are described as village lots of the depth of about 200 feet. There are no streets north of the line of the railroad, and none projected. Indeed, all of the land immediately contiguous to the lots spoken of is farm land. Although the testimony is uncertain as to the population of the village, it perhaps does not exceed 300 inhabitants. There is no testimony giving the slightest assurance of any immediate growth. It cannot be affirmed, from what appears, that these lands will advance in value within any reasonable period of time. A portion of these lands furthest from the river, and upon the eastern side of the tract, upon which Church street has been projected, but not opened, and which Mr. Trimmer says may be divided into 12 lots, appears to be nothing more than farm land. The rest of the land which he claims should be valued as village lots may properly be so regarded, except the low parcel between the first two piers, over which the water flows at every considerable rise in the Delaware. The whole quantity of land which is sought to be condemned, including the land under water to the center of the Delaware, is one acre and two-thirds. In ascertaining the proper compensation to be paid Trimmer, I have considered that the piers belonged to him, although the erection of them did not cost him anything. I have also considered that he had such an interest in the parcel of land, the title to which is in dispute, as to make it proper to place some value upon that Interest, in order finally to determine the controversy between the railroad and Mr. Trimmer; and as to the parcel of land over which, or over a portion of which, the New York, Susquehanna & Western Railroad bed is laid, I have likewise considered what its value is to Mr. Trimmer. Very much has been said in the testimony as to the cost of the construction of the four piers. This cost was several thousand dollars. But no evidence was offered to show that these piles of stone and cement are of any actual value to Mr. Trimmer, which must be the foundation of my judgment. It was admitted on the argument that those piers have no market value. Indeed, if that amount of rock or stone had been forced to the surface, by some effort of nature, upon any other portion of the land of Mr. Trimmer over which the line of the railroad runs, it never would have been suggested that such natural formation increased the value of the premises to Trimmer, unless its mineral qualities made it of some specialvalue. These statements are made for the purpose of showing that I have taken Into account every Interest to which Mr. Trimmer made claim in estimating the damages which ought to he paid to him by the complainant These statements are based upon the case of Trimmer v. Railroad Co., 55 N. J. Law, 46, 25 Atl. 932, so far as I am able to understand that case. It is my judgment that in 1889, when the commission made their return, Mr. Trimmer was entitled to $2,550 as damages for the land taken by the company, and interest upon that sum from that time until the present. I will advise, as above intimated, that the bills be dismissed, with costs.