The opinion of the court was delivered, Nov. 10th 1873, by
Sharswood, J. —In the court below this was an appeal from a report of viewers appointed upon the petition of August Rose, to assess the damages to his property arising from the construction of their railroad by the plaintiffs in error. The road did not take any part of the petitioner’s land, but was constructed along a public road or street in the (then) borough of Birmingham. The provision of the tenth section of the General Railroad Law, Act of February 19th 1849, Pamph. L. 83, which relates to this controversy, is, “ that whenever any company shall locate its road in and upon any street or alley in any city or borough, ample compensation *368shall be made to the owners of lots fronting upon such street or alley, for any damages they may sustain by reason of any excavation or embankment made in the construction of such road, to be ascertained as other damages are authorized to be ascertained by this act.” That such an embankment was made directly in front of the petitioner’s property, is not a fact in dispute, and the jury were confined by the learned judge below to the damages sustained in consequence of such embankment, a ruling Avhich could not be a subject of complaint upon this writ of error. We will proceed to consider the several errors which have been assigned.
The first assignment is to the admission of the learned judge of evidence to show, that since the construction of the road there had been difficulty in renting the plaintiff’s property, and that for a portion of the time it had remained uninhabited, it being impossible to procure tenants for the same. The objection raised to this offer was that it tended to the allowance of consequential damages, and because the only true measure of damages in law is the difference between the market value of the property before and after the location of the railroad, and this without reference to the purpose to which the property was applied before the building of the railroad, or the intention of its owners as to its future enjoyment. A further objection was made because the plaintiff Avas not in law entitled to damages resulting from any excavations or embankments which did not change the established grade of the street, and no offer was made to sIioav that the street in question had an established grade. These objections were overruled by the learned judge and the testimony admitted. In this we think there Avas no error. Admitting the rule for the measure of damages, as stated, to be the correct one, there are many different Avays by which the market value of property may be ascertained. It may be by the opinion of Avitnesses derived from actual sales in the neighborhood, but this certainly is not the only way. There may be feAV or no such actual sales before and after the alleged injury upon which to found such opinion. Surely the decrease in the rental of the property, or the impossibility of procuring constant tenants, arising from the inconveniences to which such tenants are subjected from the injury complained of, is an element in determining the difference in the value, very proper to be submitted to the consideration of the jury. How far it had resulted from the embankment, and how far from the other inconveniences caused by the construction of the road, excluded from the consideration of the jury in this case, was to be determined by them under the instruction of the court. The same objection Avould lie to direct evidence of the difference in market value. It Avas clearly not necessary for the plaintiff to show an established grade. It would follow that if a plaintiff had built his house upon a street Avhich the borough had neglected or refused to grade, that he could *369recover no damages. It was for the defendants to show that there was an established grade to which their road conformed, if the fact was so.
The second assignment of error is to the refusal of the learned judge to affirm the third point submitted by the defendants below. There was no error in this refusal. It asked the judge to charge, that in arriving at the value of plaintiff’s property the jury are to inqiiire simply what the property would sell for at a fair open sale in the market, without reference to its being used for any particular purpose, and that the best evidence of market value is the price actually paid'for land in that neighborhood, making due allowance for difference in position and improvement. Passing by the question whether the use to which a property has been applied, when that use is prevented or injured by the embankment, might not properly be considered, it is clear that the judge could not be required to instruct the jury that a sale of land in the neighborhood -is the best evidence of market value. The selling price of land in the neighborhood is undoubtedly a test of the value: Searle v. Lackawanna & Bloomsburgh Railroad Company, 9 Casey 57; East Pennsylvania Railroad Company v. Hiester, 4 Wright 53. But that is very different from the price paid for any particular property or properties. The true test is the opinion of witnesses in view of location, productiveness and the general selling price in the vicinity. Market value depends upon the judgment of the community, and a consideration of particular sales would lead to collateral issues as numerous as the sales.
The third and fourth assignments may be disposed of together. When the plan of the borough of Birmingham was first offered it was rejected by the learned judge, but this error, if it was one, 'was corrected, and the ..plan subsequently admitted. It is complained that the admission was restricted-to the purpose of showing-where the south line of Manor street is and was when the plan was made. It is not easy to perceive for what other purpose it was competent. Whether the plaintiff’s property was on or over the line, the plan was incompetent to show. That must be made out by other testimony. There was nothing in this ruling to prevent the defendants from offering such other testimony.
The fifth assignment is that the court- affirmed the fourth point of the plaintiff below — that the jury might take into consideration the ties used by the defendants in the construction of their railncay in front of the plaintiff’s property, and the ballasting or filling in between 'the same. There was clearly no error in affirming this point. The ties and filling in were surely a part of the embankment, the height of which was just that much increased by them.
Nor was there any error in affirming the plaintiff’s sixth point, as complained of in the sixth assignment. What the railway company might propose thereafter to do in the way of improvements, *370unconnected with the finishing of their railway, was clearly not a matter to be considered in determining the damages. The embankment was made and the railway finished. The company might or might not, according to their pleasure, carry out their proposed improvements, and if the damages were reduced on account of them, and the company should afterwards fail to carry them out, it is manifest that the plaintiff would be remediless. •
As to the seventh assignment, it cannot be contended, and has not been here, that the plaintiffs in error were entitled to an affirmance of their fifth point as it was presented. Had the learned judge simply refused to affirm it, no question could have been made about it. The plaintiff by having built his house over the line of the street did not thereby forfeit all claim to recover damages. All that could be claimed was that he was precluded from damages to so much of his building as had encroached upon the public highway. “The true rule,” said the court, “is to estimate the damages to the property, houses and lots, taking and considering the houses to be on the proper line of the street.” It is impossible that any reasonable jury could have construed this to be an instruction that in point of fact the houses were on the proper line. The main part of the evidence admitted and heard was as to the question of fact, what was the proper line of the street, and whether the houses were over it. The instruction, therefore, evidently was, if you believe that the houses did encroach upon the street, do not, as the defendant’s point has stated, allow the plaintiff no damages at all, but only such as he would suffer if his houses were on the proper line.
The eighth assignment of error is in refusing to affirm the sixth point of the defendant below, that the map of Remington was conclusive of the line, and if the jury believe that the plaintiff’s houses encroached on Manor street, as defined by said map, the plaintiff could not recover any damages for injuries resulting to houses built on the street. Without inquiring whether the map in question -was such an official plan as was sufficient to fix conclusively the line of the street as between the plaintiff and defendants, it is manifest that the point was too broad, as it did not distinguish between so much of the houses as encroached on the street, and so much as were within its line. A house is built on a street when it is built •on the line of it, in common as well as legal language. There was no error, therefore, in this refusal.
Judgment affirmed.