#### Harris *v.*Philadelphia.

The measure of damages for mesne profits, in an action of ejectment to compel the removal of the mouth of a sewer from a city lot, is the injury to the rental value of the lot.

It is inadmissible to prove speculative damages by evidence of what would be the rental value after the erection of a wharf.

Jan. 30, 1889.

Error, No. 78, July T., 1888, to C. P. No. 1, Phila. Co., to review a judgment on a verdict for plaintiff in an action of ejectment, by Henry G. Harris, to the use of A. G. Harris, against the city of Phila., at June T., 1885, No. 781. McCollum and Mitchell, JJ., absent.

On July 3, 1885, the writ was issued for a lot on the east side of the Schuylkill river at the foot of Ellsworth St., extending about 200 feet, to the Port Warden’s line, from the west side of Schuylkill Avenue, a street laid out on the city plan, but not opened. The action was brought to compel the defendant to remove the mouth of a sewer from said lot. The plea is not given.

On the trial, the evidence tended to establish the following facts:

The plaintiff acquired title March 1$, 1881. After the action was begun, the lot was sold to Amanda G. Harris, and the action marked to her use. The lot was a mud-flat, and the sewer was constructed about i860. About 1868, after a heavy wash, a head or end was built to the sewer. The deposits from the sewer gradually filled up the marsh, year after year. An ordinance was passed April 2, 1881, providing that if the owner of this lot should dedicate 25 feet of land in the direction of Ellsworth street, as already opened, the lines of that street would be changed in said direction; and the plaintiff tendered a deed making such dedication.

During the pendence of this action, the Schuylkill River East Side R. R. Co. located its tracks across the lot, and extended the sewer along Ellsworth street to the Port Warden’s line. That part of the sewer on the plaintiff’s lot was then removed. The action went on for mesne profits.

*392The railroad bulkheaded the lot in a substantial manner before laying their tracks. The wharf was rented in 1887 for *$500,*and in 1888 for *$600.*It was admitted by one of defendant’s witnesses that the unimproved lot was worth about *$2,500.*

The following questions were asked by plaintiff’s counsel :

“What would have been the rental value of that lot had it been bulkheaded? ” [1] Objected to, excluded and exception.-

“ Would the rental value be more or less if the railroad were not there ? The railroad having been built after plaintiff’s claim for mesne profits ceased.” [2] Objected to, excluded and exception.

“ What rent will a wharf 100 feet on the river, by 200 feet, within a square of Christian street, bring ? ” [3] Objected to, excluded and exception.

“ What was the rent of Plarrison’s wharf at the foot of Christian street?” [4] Objected to, excluded and exception.

“ Did Mr. Harris confer with you [a district surveyor] regarding the removal of the sewer ? ” [5] Objected to, excluded and exception.

“ What would be the cost of putting a bulkhead at the front of this property? ” [6] Objected to, excluded and exception.

“What is bulkheading worth in seven feet of water, per foot?” [7] Objected to, excluded and exception.

Plaintiff offered to prove, by the secretary of the Board of Port Wardens, that an application was made in 1880, to the Board of Port Wardens, for a license to build a wharf on this property. [8] Objected to, excluded and exception.

Plaintiff asked Boswell, the former owner : “ Did you ever make an application to the councils of Phila. for the removal of the sewer.” [9] Objected to, excluded and exception.

The court below charged the jury as follows :

“ This case has been deliberately tried, and I intend to leave it largely to you. The plaintiff claims that he is entitled to the profit lost by the use of the ground for the purpose of this sewer. The city claims that by reason of this sewer being there, land was added to the plaintiff’s lot, and the landowner benefited thereby. The plaintiff is entitled to recover whatever profit he would have received, if the sewer had not been there. If there would be no profit, there can be no recovery.

“ A great deal has been said in this case, but you are not to forget the evidence. You are to remember the testimony and decide by that, as you recollect it.”

The plaintiff presented, inter alia, the following points, which were refused:

“ The Federal street sewer, being a public sewer or drain for the accommodation of a large section of the city, and the plaintiff’s land not offering the natural water-course for that section, the defendant could not carry the sewage through plaintiff’s land without paying for the land taken.” [11]

*393
      *“2.*The defendant could not throw the sewage and drainage of a large section of the city on to plaintiff’s land thereby creating a nuisance. It was defendant’s duty to carry the said sewage over and past plaintiff’s lot, to some natural receptacle or channel for its discharge.” [12]

“5. The defendant could not procure twenty-five feet of plaintiff’s land, for the purpose of the continuance of Ellsworth street, and continue to occupy plaintiff’s land, with its sewer and sewer discharge.” [13]

*The assignments of error*specified the action of the court, 1-9, in disallowing the above offers, quoting the questions but not the bills of exceptions; 10, in excluding all evidence of the fair annual value of the property, the sewer being at the time of the trial removed, and the permanent injury to the lot being therefore greatly lessened; 11-13, in refusing plaintiff’s points, as above, quoting them; 14, in submitting to the jury that there was any evidence from which the jury could find any benefit done to plaintiff’s land by the encroaching sewer; 15, in leaving the case to the jury as to the amount of damages without more specific instructions as to the damages and their measure.

*Henry G. Harris,*for plaintiff in error.

There were two points to be determined, whether defendant had any right to occupy plaintiff’s land, and, if not, what were the mesne profits which plaintiff should receive.

The defendant undertook to show such possession as would raise the presumption of a grant. But no prescription runs in favor of a party endowed with the right of eminent domain; there is no choice but to acquiese in the case of property taken for public use. Jessup *v.*Loucks, 55 Pa. 350.

After the ordinance of 1881, laying out the lines of Ellsworth street, the city had no right to allow its sewer to remain outside of those lines. The verdict in favor of the plaintiff is conclusive of the right to mesne profits. Stephens *v.*Strosnider, 92 Pa. 236.

The measure of damages is the amount of injury to the fair annual value of the premises. Huston *v.*Wickersham, 2 W. & S. 308; Morrison *v.*Robinson, 31 Pa. 459; Seely w-Alden, 61 Pa. 304; Carmen *v.*Beam, 88 Pa. 323; Grove *v.*Barclay, 106 Pa. 163.

The action for mesne profits is an equitable one; the fair annual value of the lot would be the rental when improved, less interest on the cost of the improvement. Ege *v.*Kille, 84 Pa. 333.

Fair market value, outside of unusual depression, is to be considered. One cannot trespass on another’s rights and allege, in defence, that there was no market value to the land taken. Trout *v.*Kennedy, 47 Pa. 387.

It was error to leave the amount of damages to the jury as a matter of guess; they ought to have been instructed that they should not find for less than a full compensation for the loss. The *394fact that the tortious act of the defendant was in any way of advantage to the plaintiff is immaterial, and such benefit cannot be set off Sanderson *v.*Coal Co., 102 Pa. 370.

Feb. 11, 1889.

The court refused to allow the plaintiff to show that the lot had any rental value, and allowed a verdict of one cent damages to stand against taxes paid to the defendant, interest or rental, and the permanent injury by reason of the flow of filth and sewage.

The question of title having been settled by the verdict, a writ of inquiry as to damages ought now to be allowed.

*Abraham M. Beitler,*with him *Charles F. Warwick,*for defendant in error.

Evidence of the rental value of other wharves was inadmissible. R. R. Co. *v.*Vance, 115 Pa. 325.

The offer to prove a conference with the district surveyor in regard to the removal of the sewer, was inadmissible, for he was in no sense the city’s agent. Alcorn *v.*Phila., 44 Pa. 348.

The other offers of evidence were irrelevant. The theory was, the plaintiff could guess at the cost of improvements, guess at the amount of taxes and repairs, and then charge the city with the rental, without any proof that he ever made any effort to have the sewer removed, or that he ever intended to construct a wharf, or that the wharf could not have been built with the sewer, there.

In regard to the plaintiff’s first point, there was no evidence that the city took any of plaintiff’s land, or that the land was not the natural water-course. If there was any taking of land, it was at least twenty-one years before plaintiff bought.

As to the second point, there was no evidence of a nuisance. To have told the jury that it was the city’s duty to carry the sewage “over and past” the lot, would have ended plaintiff’s case, for he was contending that the city had no right to carry sewage over the lot.

The fifth point was without logic; the making of the deed of dedication could not change the rights of the parties in regard to the sewer.

The court said nothing about the existence of any evidence of benefit to the land by the sewer, although in point of fact the sewer had all along been making fast land for the owners.

The whole proceeding was a mere speculation on the part of the plaintiff; the marsh had no value till the railroad company occupied it and made a wharf of it.

Per Curiam,

This was an action of ejectment to compel the city to remove the mouth of one of its main sewers from the plaintiff’s wharf lot, fronting on the river Schuylkill. Pending the ejectment, the city removed the sewer, and the action went on for mesne profits alone. The true question for determination in the court below was, how far the sewer interferred with the rental value of the property. The numerous assignments of error indicate that the plaintiff did not confine himself to the rental value of *395the property as it stood, but attempted to show what might have been its rental value under other circumstances. As an illustration, we may take the first assignment which alleges that the court below erred in excluding the question, “ What would have been the rental value of that lot had it been bulkheadedand again (see third assignment): “What rent will a wharf of 100 feet on the river, by 200 feet, within a square of Christian street, bring ?” The defendant’s lot had not been bulkheaded, nor had he any wharf whatever. He had a lot only. To show what the rental value of the lot would be' after an indefinite amount of money had been spent upon it, would not advance the inquiry in any degree, at least not in a proper, manner. In the case of the taking of property under the right of eminent domain, for railroad and other purposes, the measure of damages, as settled by a bead-roll of authority, is, the difference between the value of the property before and after the taking. The moment we depart from this rule, and admit evidence of the value of the property for a particular use, we enter the field of speculation. The plaintiff might as well have offered to show the rental value of his lot with a hotel, or manufactory upon it. After a careful examination of the assignments, we are unable to say that the court below committed any error.

Judgment affirmed.

Motion for Ve-argument.

The following reasons were assigned in support of the motion: 1. The court failed to consider the peculiar location of the lot on the river front gave it a rental value when used for wharfage alone. Assignments of error 1-4. Seely *v.*Alden, 61 Pa. 304, and Ege *v.*Kille, 84 Pa. 333, hold that the damages must be calculated for the natural uses to which the land is adapted. 11. The court failed to consider the gift of land 25 by 260 feet, for a sewer, on condition that the city move the sewer to this strip. Assignment of error 9. hi. No evidence of benefit done by the trespassing sewer should have been admitted. Sanderson *v.*Coal Co., 102 Pa. 370. If the sewer had not ruined the property, it might be of value. Trout *v.*Kennedy, 47 Pa. 387. Assignments of error 14 and 15. iv. The court will reverse for slight error, where the judgment is wrong. Batdorff *v.*Bank, 61 Pa. 184-5 *;*Stall *v.*Meek, 70 Pa. 182-3 ; Wenger *v.*Barnhart, 55 Pa. 303, and Pa. R. R. *v.*Berry, 68 Pa. 277-9, and cases there cited, v. The description of the lot by defendant in error on the argument was misleading, vi. This was not the case of land taken for public use, under the right of eminent domain. For trespass, the measure of damages is the rental value of the land for its most available purpose. Carman *v.*Beam, 88 Pa. 323; Morrison *v.*Robinson, 31 Pa. 459; Grove *v.*Barclay, 106 Pa. 163.

Per Curiam,

Feb. 25, 1889.

Re-argument refused, h. j. l.