text:
    Mineral Railroad & Mining Company, Appellant, v. Northumberland County Commissioners
    (No. 1)

      Taxation — Appeals—Valuation of board of revision — Appointment of expert commissioners.

    1. Although the act allowing an appeal from a tax valuation of the board of revision does not authorize the appointment of expert commissioners to hear testimony, examine the property and report to the court, yet if all of the parties in interest agree, expert commissioners may be appointed, but their report can only be considered as an aid to the court below, and it is only the action of the court upon the report that can be reviewed by the appellate court.

      Taxation — Assessment—Ratio of assessed to actual value.

    2. Where it appears that the assessed value of real estate in a particular county is generally only sixty per cent of its actual value, it is the duty of a court on appeal in making the assessment of a particular property to determine the actual selling value, and fix the assessed value at sixty per cent thereof.

      Taxation — Assessments—Equality.
    3. The purpose of requiring all tax laws to be uniform in their application to the same class of subjects, is to produce equality of taxation, but absolute equality has never been attained, and approximate equality is the best result obtainable under the present system of taxation. Where there is substantial uniformity in the application of tax laws, the mandate of the constitution is not offended against.
    4. On an appeal from a tax valuation the court will not take into consideration the fact that the value of a few neighboring tracts of land were assessed below the uniform standard. It can only take into consideration the uniform standard of valuation of general application throughout the county.

      5. The courts can only exercise authority in the cases brought before them on appeal, and have no power to revise and equalize assessments generally.
    6. Where a landowner has been taxed on the actual acreage which he owned, he cannot complain that a neighbor was taxed for a less number of acres than he owned.
    7. The official acre, that is the acre and allowance, as originally authorized in grants from the commonwealth is not the only acre assessable for purposes of taxation. The number of acres recited in the owner’s deed is as a rale accepted as the acreage subject to taxation.
    8. Uniform increase in the value of real estate throughout the entire taxing district is not the test of uniform assessment. The assessment is uniform within the meaning of the law if the average ratio of assessed to actual market value is applied in determining the valuation of each separate tract.
    9. The foot acre method as a basis for ascertaining the value of coal land for the purpose of taxation, is exceptional, and, in most instances, is not a proper basis to determine actual value. When the parties agree to such a method it may be used, but it is not of general application and when adopted the local conditions must be such as to give the whole coal area a present market value to be ascertained upon some definite fixed basis.
    Argued Oct. 6, 1910.
    Appeal, No. 14, Jan. T., 1910, by plaintiff, from decree of C. P. Northumberland Co., Dec. T., 1907, No. 337, fixing valuation of coal lands in case of Mineral Railroad & Mining Company v. Northumberland County Commissioners.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from valuation of coal lands by the board of revision.
    Savidge, P. J., and Auten, J., filed the following opinion:
    This investigation involves thirty-four so-called coal tax appeals, covering 116 separate properties, running into several million dollars in value.
    Valuation for the purpose of taxation being largely a question of comparison it was found necessary to cover the entire anthracite coal field of Northumberland county, the .unappealed properties as well as those covered by the appeals.
    These appeals are from the commissioners’ valuations on assessments of 1907. They first came to the court on February 24, 1908.
    Upon consultation with counsel concerned for the various coal property owners, counsel for the commissioners, and the commissioners, it was deemed advisable to appoint what has now become known as the coal tax commission, to take evidence, make personal investigation upon the ground and report values. This commission was composed of two experienced expert mining engineers, the one being from Luzerne county and the other from Lackawanna county, and an intelligent business man from Watsontown, Northumberland county, none of whom is in any wise connected with coal interests in Northumberland county. The personnel of this commission-was entirely acceptable to all parties in interest.
    They were instructed to report upon not only those properties where appeals were pending but upon all anthracite coal properties in Northumberland county.
    Regardless of what has been the outcome of the inquiry as to the property involved in the appeals, the appointment of a commission has proved to be a wise move, for the reason that their tabulated report has called attention to large inequalities as to a vast number of properties not involved in the appeals. For instance, there were no appeals by the Philadelphia & Reading Coal & Iron Company covering their properties in Mount Carmel township. The coal commission has discovered on this block of properties alone .an undervaluation of 1766,657.
    From the exigencies of the case, it has been impossible for the court, with the assistance of the coal commission, to reach such conclusions as would do justice to the various property owners and interests, for the following reasons: In the first place, we were confined in our action to those properties in which appeals were pénding. Secondly, the law does not permit us to increase values beyond those fixed by the county commissioners sitting as a board of revision, except where such valuation was less than that fixed by the assessor, which was the case in a single instance only.
    Manifestly, it would be unjust to sustain valuations affecting property of one company fixed far in excess of the values placed upon as good or better neighboring lands over which we had no control, belonging to other companies. In such cases it was found absolutely necessary to reduce values in order to maintain a semblance of equality between the taxables. It follows that we could not, with any degree of justice, more than arrive at an approximation of actual values, hence we do not consider that our figures ought to be taken as a criterion for future valuations by assessors or the county commissioners sitting as a board of revision. In many instances we would increase valuations had we the power so to do. In some instances we might still further lower them were it not for the injustice that would be done to individual and small owners.
    The coal tax commission, as well as the court, has been greatly hampered for lack of material testimony. In very few cases has there been anything upon which we could calculate values and in no instance has a single witness testified to the probable selling value, at a bona fide sale, of the property under consideration. All parties seem to have fought shy of the one vital question at issue and it has made our task a very discouraging one.
    We have done the very best we could under the circumstances and can only express the hope that, if these questions ever again come before us, they may be under such conditions as will afford opportunity to reach conclusions in the light of ample material testimony.
    We are filing this opinion to No. 337, December Term, 1907, because that appeal includes the Thomas Hamilton tract, carrying the highest per acre valuation of any anthracite coal land in this county; therefore, it, the best of any, affords opportunity for comparison and illustration.
    Before proceeding, however, with matters touching directly this appeal and other appealed lands in the neighborhood of the Hamilton, we call attention, generally, to the conditions in Mount Carmel township, leaving out of question the lands of the Penn Anthracite Coal Company, as to which settlements have recently been reached. The coal lands of that township are in three separate large holdings, namely: those of the Philadelphia & Reading Coal & Iron Company, the Lehigh Valley Coal Company and the Mineral Railroad & Mining Company. The county commissioners’ valuations of the mineral company lands seem to be greatly out of proportion to the valuations of the holdings of the Philadelphia & Reading Coal & Iron Company. As already seen, the coal commission has increased the Philadelphia & Reading’s valuations $766,657. This increase being the valuation for assessment purposes and not actual value. We have also called attention to the fact that the court is powerless to increase the county commissioners’ valuation for the reason that there are no. appeals by the Reading company.
    The coal commission has already largely reduced the valuations of the mineral company lands. Notwithstanding these reductions, however, they still remain far in excess of those of the Philadelphia & Reading Coal & Iron Company. Were we to still further reduce the mineral’s valuation, too great injustice would be done to the small property owners of the township. Were we to restore them to the-valuation placed upon them by the county commissioners, we would still further increase the already glaring inequality between the reduced coal commission’s valuations and the county commissioners’ valuations of the Philadelphia & Reading’s lands, which cannot be changed. We have, therefore, concluded that the coal tax commission’s valuations of the mineral’s land ought to stand.
    As showing these inequalities we instance a single case, that of the William Sheed tract, which is undeveloped, in the heart of the basin and owned in part by the mineral company and in part by the Reading. The Reading company owns considerable more than two-thirds of this tract upon which the county commissioners placed an assessed valuation of $2,730.' The portion owned by the mineral company, being less than one-third of the tract, was valued by the county commissioners at $97,344. The coal commission has reduced the assessed valuation of the mineral tract slightly, bringing it down to $96,600. They have raised the Reading portion of this tract from $2,730 to $132,339. There still seems to be an inequality as against the mineral company. Other mineral tracts adjoining have been more largely reduced by the coal commission, and many of the Reading tracts have been increased but, as we are powerless to take advantage of the coal commission’s increase of the Reading tracts, it would be gross injustice not to accept the coal commission’s reduction on the mineral valuation.
    As to the Lehigh Valley lands, the large block at the eastern end of the township, consisting of the Miller, Kennedy, Tunis, Smith, Davis, Jordan and others, is practically exhausted of coal and the lands of comparatively little value and we must therefore accept the coal commission’s valuation, especially in view of the fact that the adjoining and near by Reading lands enjoy, in comparison, so great an advantage over their neighbors. We find their exhausted condition from the overwhelming testimony in the case. If it were otherwise it is fair to presume there would have been counter testimony on behalf of the county. There is none — absolutely none.
    Coming to the block of lands belonging to the Lehigh Valley Company, located partly in Mount Carmel and partly in Coal township, being what are known as the Brown lands, consisting of- the White, Reese, Thompson, and other tracts, we have concluded, notwithstanding the reduction made by the coal commission, the county commissioner’s valuations ought to be restored. These are virgin lands lying in the center of the basin, with adjoining lands proven and ought to be of as great value per acre as the William Tomlinson, the Sheed, the Wm. Prichard and others of the mineral company, in the same vicinity. The coal commission’s valuations of the unworked adjoining mineral lands are still greatly in excess of the county commissioners’ valuation of the Brown lands. We, therefore, think that in justice not only to the mineral company, but to the small property owners of the township as well, the county commissioners’ valuations must be restored.

      Returning to the tracts covered by the appeal No. 337, December Term, 1907, covering all the mineral company’s land in Coal township, we have concluded that the coal tax commission’s valuations ought to stand. Our reasons are these: With the exception of the Thomas Hamilton all the tracts have been largely mined and many of them practically exhausted. Most of them have been operated almost since the beginning of coal mining in Northumberland county, and as compared with lands to the west of the borough of Shamokin, have not been undervalued by the coal commission.
    The Thomas Hamilton, located immediately west of the borough of Shamokin and consisting of 295 acres of 'mineral only, was valued by the county commissioners far in excess per acre of any other tract of land, large or small, in the entire coal field with the exception of a small acreage in Shamokin borough. Their figure is $2,638 per acre. As reduced by the coal commission, it still stands at the sum of $1,128 per acre, being yet higher than any adjoining tract, or any other tract in the coal field as fixed by either the county commissioners or coal commission, except as above. For this reason we feel that the coal commission’s valuation should, in justice to the owners, remain. This tract should pay no more proportionately than adjoiners of equal or greater value. From twenty to twenty-five per cent of the coal has been worked out and there is no breaker or other valuable improvements on the property, the coal being hauled to and prepared at the Cameron breaker, on the adjoining John Brady tract.
    The John Carson, the mineral rights of which belong to Langdon & Company, adjoining the Hamilton on the south next to it, carries the highest per acre valuation. This is unappealed from and its valuation cannot be changed. Taking the Hamilton and Carson, and especially the Hamilton, as the standard with which to make comparisons, we necessarily reach the conclusion that the Philadelphia & Reading lands and the lands known as associate lands in Coal and Zerbe townships, between Shamokin and Treverton, in what is sometimes called the Treverton basin, ought, in several instances to be restored to the valuations fixed upon them by the county commissioners. We believe, with the coal commission, that the Hamilton, is at least, worth and would bring, at a bona fide sale, the estimate fixed upon it by them; therefore, in justice to the mineral company and to the individual taxpayers, many of the properties have been, we feel, estimated too low by the coal commission. The evidence shows that these properties are, most of them, undeveloped, but the coal in them is of the same thickness and of the same general character, and that one property is comparatively of like value with another. We have made full allowance for the coal mined. Also for proximity of the various properties to the outcrop.
    The valuation of the William Green, belonging to the Bellas estate, has been greatly reduced by the coal commission and still further reduced by the court, for the reason that the evidence shows that this property has been largely exhausted, the veins very deep, water very troublesome and it is impossible to lease it to the Reading company, which has heretofore worked it, and the chances are that lying as it does, and in its present condition, it would bring very little if put upon the market. Besides the last assessment, a large portion of the surface, that portion situated in the town of Ballaire, has been sold off and, of course, is separately taxed.
    We find there has been a mistake in the assessing of the McReynolds tract to the Bellas estate; the evidence shows that it is a double assessment. The John Hoglin and Luke Hoglin call for each other and leave no room for the McReynolds and there is no claim by the Bellas heirs to own this tract of land. We understand that it is not only included in the Reading holdings but is being actually worked by the Reading company as their own property and not under lease from the Bellas estate.
    As to the Deering, Kiehl, Watters and Black tracts, we have reduced them below the values fixed by the coal commission for the reason that they are so small, being only a few acres in extent each, and so isolated from transportation that they could not be mined by independent concerns and therefore would bring very little in the market if put to sale. The same is true of the Benjamin Gumming, Jr., tract.
    We conclude that the Helfenstein lands, consisting of 1,960 acres in East Cameron township, most of which are in the coal measures, have not been sufficiently valued, either by the county commissioners or the coal commission. The value put upon them by the county commissioners is $28,800. The actual value placed upon them by the coal commission is $53,800, and it having been agreed by all parties in the beginning, that the coal lands were to be assessed at sixty per cent of their actual value, in conformity to the rule throughout the balance of the county, the coal commission’s valuation for taxation would therefore be sixty per cent of this amount, which is $32,280.
    (It must be understood that when we are referring to the amounts fixed by the coal tax commission heretofore, the figures have represented sixty per cent of the full valuations fixed by them.)
    The assessor of East Cameron township placed a valuation of $248,348 on these lands. Why this great reduction by the county commissioners we do not understand. It is the only instance we have discovered in which the commissioners have cut down the assessors’ figures; hence, it is the only instance in which we have the power to increase the valuation beyond that fixed by the county commissioners. We believe this body of lands is of greater value than that fixed by either the county commissioners or the coal commission. There is very little testimony bearing upon values. The map introduced by the defendants shows that approximately five-sixths of the tract is within the coal measure. We do not know how many veins are contained upon it. It would appear however, that a portion at the eastern end of the tract contains numbers eight and nine, and must, of course, contain the lower veins. It was certainly within the power of the owner to give us some information as to the value of this tract. We are all at sea and do not know why the assessors and the coal tax commission have varied so greatly. However, we have concluded to place a valuation at between $100 and $150 per acre, actual, making the valuation for taxing purposes $150,000.
    So far we have not called attention to the appeals covering land in the boroughs of Shamokin and Mount Carmel.
    As to the assessments in the borough of Shamokin, the Mineral Railroad & Mining Company, as elsewhere, seems to have gotten the worst of it. The valuation of their mineral rights there, generally, exceed $3,000 per acre, which is far in excess of the county commissioners’ valuation of other coal lands anywhere in the county. The average valuation of the Philadelphia & Reading Coal & Iron Company lands in this borough is $500 per acre. These valuations are not appealed from, nor are the valuations of the East End Land & Coal Company or the valuations of the lands of J. Langdon & Company appealed from.. These too are very much lower than the mineral valuations. Inasmuch as we are powerless to change these valuations, or those of the Philadelphia & Reading Coal & Iron Company, in the borough, we feel that we are but giving the mineral company a square deal when we reduce their valuations to approximately $1,000 an acre, for their mineral rights.
    No appeals having been taken from the revisions made by the county commissioners in the several wards of the borough of Mount Carmel, either by the Philadelphia & Reading Coal & Iron Company or by the taxing authorities of that town, we are, of course, powerless to interfere with the valuations as fixed by the board of revision.
    This opinion is intended to cover in a general way all the appeals before us; specifically, the properties described in appeal No. 337, December Term, 1907, which we hereinafter separately value.
    We will take up each appeal separately and, in a short way, fix values, referring to this opinion as furnishing the reason for our action. Attached hereto will be found a schedule showing the valuations covering the entire scope of territory upon which appeals were taken, as well as the county commissioners’ valuation of the balance of the coal territory, thus giving the valuations as they now stand for taxation purposes for the years 1907, 1908 and 1909.
    And now, to wit: October 21, 1909, we hereby, for the purpose of taxation value the
    Thomas Hamilton tract at................ $326,910.00
    William Brady tract at................... 12,084.00
    John Brady, including Cameron colliery and improvements......................... 145,315.00
    Luke Fidler and Galen R. Hanley tract, including colliery and washery improvements but not Luke Fidler breaker............. 208,311.00
    William Lane tract, including Hickory Swamp breaker, etc.......................... 94,068.00
    Sarah Lane tract, including Hickory Ridge improvements in Coal township.......•.. 59,300.00
    William Lambert tract, including 163 acres north of mountain............. 104,593.00
    Samuel Clark tract in Coal township....... 2,405.00
    Daniel Reese tract at..................... 12,580.00
    John W. White tract, twelve acres at....... 3,216.00
    Samuel Wetherill tract at................. 1,240.00
    Luke Fidler Breaker tract at.............. 34,808.00
    Ludwig Gass & Wm. Baker at............. 1,760.00
    Mary Lane at........................... 71,305.00
    The William Brady, as we have valued it, consists of 268 acres, to wit: 181 acres valued by county commissioners at $31,200 and eighty-seven acres valued by them at $2,175.

      The John Brady includes the entire tract of 628 acres more or less, the Cameron colliery and barren lands.
    The William Lambert includes the 466 acres of mineral and the 163 acres north of the mountain, in all 629 acres.
    We are of the opinion that the work of the coal commission and the court will enable the various assessors and the county commissioners as a board of revision hereafter to reach more just and equitable conclusions.
    We wish to make a few suggestions for their guidance:
    1. The township lines should be established and wherever tracts of land are partly in one and partly in another township the acreage in each township should, be definitely established. Always assess to the proper township.
    2. There seems to be some doubt as to the location of the line between Coal and Mount Carmel townships, and East and West Cameron townships. If nobody knows where these lines are it is high time they were established. We insist that they should by all means be established before the triennial assessment, now on, is finished.
    3. In no case should a tract of land owned by the same party be divided for the purpose of assessment unless it lies partly in one township and partly in another.
    4. Where a tract of land is partly underlaid with coal and partly barren it should be assessed altogether. No tract can be partly seated and partly unseated. If any portion is improved the entire tract becomes seated.
    5. Breakers and improvements should be valued with the tracts of land upon which they are located, unless they are upon leased lands, in which case they should be valued separately. Where the lands have improvements owned by the same party, there is no more reason for giving them separate valuations than there would be to separately value a farm and the farm buildings, which everybody knows would not be right and is never done.
    COSTS.
    We direct that the record costs of each separate appeal be paid, one-half by the county commissioners and one-half by the appellants, except in the case of East Cameron Township Road Supervisor’s Appeal, where the county is directed to pay all the record costs.
    All other costs, including the fees and expenses of the coal tax commission, stenographer’s bills, witness bills, and all other costs of whatever nature, shall be paid as follows:
    One-half by the county of Northumberland.
    One-fourth by the Philadelphia & Reading Coal & Iron Company.
    One-sixth by the Mineral Railroad & Mining Company.
    One-twelfth by the Lehigh Valley Coal Company.

      Errors assigned were various rulings and exceptions, and the findings and decree of the court.

      W. H. M. Oram, for appellant.
    Where it appears that appellant’s property is assessed at a higher figure than other similar properties in the township, the assessment will be reduced: Richter’s App., 8 Pa. C. C. Rep. 119; Irwin Basin Coal Lands Assessment, 17 Pa. Dist. Rep. 825; Bell’s App., 11 Pa. Dist. Rep. 732; Garver’s Tax Assessment, 34 Pa. C. C. Rep. 138; Cambridge Spring Co.’s App., 21 Pa. C. C. Rep. 669; Pringle’s App., 6 Kulp, 525; Doylestown Tax Assessment, 17 Pa. C. C. Rep. 535; Moore’s App., 4 Pa. Dist. Rep. 703; Drake’s App., 5 Northampton Co. 215; Weitzenkorn v. Luzerne County Commissioners, 8 Kulp, 165; Reading Iron Co.’s App., 21 Pa. C. C. Rep. 429.
    This principle is carried to the extent of reducing an assessment which is already below the actual value: Dickson v. Scranton, 5 Law Times (N. S., Pa.) 179; Smith v. Forest County, 23 Pa. C. C. Rep. 643; Harrison’s App., 20 Montg. 167; Rockhill Iron & Coal Co. v. Fulton County, 204 Pa. 44; Ferguson v. Lycoming County, 8 Pa. C. C. Rep. 667; Richter’s App., 8 Pa. C. C. Rep. 119.
    If the appraisement and settlement for taxes against a corporation for a given period are not uniform with those made against other like corporations for the same period and do not produce uniformity, they are bad: Com. v. Lake Shore, etc., R. R. Co., 3 Dauphin, 172; Com. v. Shamokin, etc., R. R. Co., 3 Dauphin, 168; Weitzenkorn v. Luzerne County Commissioners, 8 Kulp, 165; Berwind-White Coal Mining Co. v. Clearfield County, 18 Pa. C. C. Rep. 545; Reading Iron Co.’s App., 21 Pa. C. C. Rep. 429; Logan v. Washington County, 29 Pa. 373; Becker v. R. R. Co., 177 Pa. 252.
    In valuing lands for taxable purposes the market prices are all that the courts and juries can use as measures of value. All other measures are necessarily arbitrary and fanciful: Searle v. Lackawanna & Bloomsburg R. R. Co., 33 Pa. 57; Reading & Pottsville R. R. Co. v. Balthaser, 119 Pa. 472; Becker v. R. R. Co., 177 Pa. 252; Baker v. R. R. Co., 219 Pa. 398.
    The act of 1889 vests in the court power to either sustain or set aside the assessment of the board of revision— to sustain if found to be correct, to set aside if found to be wrong, and the court admits the wrong: D. L. & W. R. R. Co.’s Tax Assessment (No. 1), 224 Pa. 240; Irwin Basin Coal Lands Assessment, 17 Pa. Dist. Rep. 825; Richter’s App., 8 Pa. C. C. Rep. 119.

      J. W. Gillespie, for appellee.
    The decree of the court was proper: Lehigh, etc., Coal Co.’s Assessment, 225 Pa. 272; D., L. & W. R. R. Co.’s Tax Assessment, 224 Pa. 240; Searle v. R. R. Co., 33 Pa. 57; Pittsburg, etc., Ry. Co. v. Vance, 115 Pa. 325; Pittsburg, etc., R. R. Co. v. Patterson, 107 Pa. 461; Doylestown Tax Assessment, 17 Pa. C. C. Rep. 535; Reading Iron Co.’s App., 21 Pa. C. C. Rep. 429; Mattern v. Huntingdon County Commissioners, 17 Pa. Dist. Rep. 15.
    The comparison is to be made with the generality of property of the same class, and not with a single assessment or a few assessments.
    To the same effect is Pringle’s App., 6 Kulp, 525; Armstrong County Tax Assessment, 25 Pa. C. C, Rep. 213; Greenough v. Fulton Coal Co., 74 Pa. 486; Ins. Co. v. Yard, 17 Pa. 331; Hosack v. Crill, 18 Pa. Superior Ct. 90; Murray’s Est., 216 Pa. 270; Sanderson v. City of Scranton, 105 Pa. 469; Delaware, Lackawanna & Western R. R. Co. v. Sanderson et al., 109 Pa. 583; Kingsley v. Hillside Coal & Iron Co., 144 Pa. 613; Plummer v. Hillside Coal & Iron Co., 160 Pa. 483; Lehigh, etc., Coal Co. v. Wright, 177 Pa. 387; Dorr v. Reynolds, 26 Pa. Superior Ct. 139; Bell’s App., 11 Pa. Dist. Rep. 732; Hamilton Heirs’ App., 14 Pa. Dist. Rep. 655; Irwin Basin Coal Lands Assessment, 17 Pa. Dist. Rep. 825.
    January 3, 1911:
   Opinion by

Mr. Justice Elkin,

This is an appeal from the decree entered by the learned court below fixing the assessed valuation of coal lands owned by appellant and located in Coal township, Northumberland county. The assignments of error are so numerous as to preclude the possibility of discussing each one separately. No useful purpose would be served by so doing. The discussion of a few controlling principles will be sufficient to properly dispose of the appeal. The case came into the court below on appeal from the valuation fixed by the board of revision. On account of the large number of appeals pending and the vast amount of details necessary to fully inform the conscience of the court, it was suggested that a commission of experts be appointed to hear the testimony, make an examination of the properties, investigate the conditions upon the ground, find the facts and report conclusions for the information of the court. This method of procedure was approved by all interested parties, three expert commissioners were appointed and the commission thus created proceeded to take testimony and make such investigation as was deemed necessary to determine the valuation of the lands in question for the purpose of taxation. The act of 1889 under which the appeals were taken does not authorize the appointment of expert commissioners for the purpose stated, but, the interested parties having agreed to this method of procedure as an aid to the court, we can see no legal objection to the course adopted. This conclusion is based upon the assent of the parties, and even then, a commission so created can only act as a means to an end, the end being to report the facts and conclusions for the information and guidance of the court. It is the duty of the court to hear and determine the questions involved and the final responsibility must be assumed by the tribunal authorized by the statute to exercise the power conferred. If either party objects to the appointment of such a commission the court is without power to compel such a method of procedure. In the case at bar the record shows painstaking care and intelligent consideration on the part of the commission. The report is comprehensive and complete. It covers the whole field of investigation with a summary of reasons and conclusions showing painstaking consideration. It must have been most helpful to the court below as it has been here. While some items of testimony relating to assessable value may have been improperly admitted and some details of the investigation and reasons given for conclusions reached are not entirely approved, the report of the commission as a whole is commended. Of course the report of the commission can only be considered as an aid to the court and it is the action of the court upon the report that must be reviewed here.

It was agreed by the parties that the assessed value of real estate in Northumberland county was only sixty per cent of its actual value. This ratio was accepted by the court and uniformly applied in determining the valuation of each tract for assessment purposes. In other words, when the actual selling value was determined the assessed value was fixed at sixty per cent of the actual market value. This was done in compliance with the constitutional mandate requiring that all taxes shall be uniform upon the same class of subjects. It is also in conformity with the requirements of the act of 1889, and the decisions of this court construing the same: D., L. & W. R. R. Co.’s Tax Assessment, 224 Pa. 240; Lehigh, etc., Coal Co. v. Luzerne County, 225 Pa. 267. Appellant is not therefore in position to complain that in the valuation of its lands the ratio of assessed to actual value which was generally adopted throughout the county was not used as a basis. The general average ratio agreed upon as a proper basis was applied in fixing the assessed value of each tract. It, however, is earnestly and ably argued for appellant, notwithstanding the fact that the assessed value of its lands was fixed at sixty per cent of their actual value, there still was an unjust discrimination to such an extent as to offend against the constitutional provision requiring uniformity. As- this court has frequently said the purpose of requiring all tax laws to be uniform in their application to the same class of subjects is to produce equality of taxation, but absolute equality has never been attained, and approximate equality is the best result obtainable under our present system of taxation. Where there is substantial uniformity in the application of tax laws the mandate of the constitution is not offended against. This is the rule of all the cases in which the question was considered. In the case at bar appellant points to the fact that the lands of some of its neighbors, although just as valuable as those under consideration, have been assessed at a much lower valuation. For this reason it is urged that there was an unfair discrimination in the valuations to the prejudice of appellant and in disregard of the rule requiring uniformity. In some of the instances called to our attention the difference in valuation is so marked as to require explanation by the assessors who made the assessments and whose duty it was under the law to make and return a just valuation of each tract in their respective districts. But, if assessors fail to do their duty by making an assessment of some particular tract or tracts too low and the board of revision fails to equalize the valuations upon a uniform basis, the courts can only give relief in cases brought before them on appeal. It is true courts in determining the valuation of a particular tract or tracts, from the assessment of which an appeal has been taken, must have due regard to the valuation and assessment of other real estate in the same district. But this does not mean, when on appeal the proper valuation of a particular tract of land is to be determined, the basis of uniformity depends upon a comparison with the assessed value of a few tracts that may have been assessed below the uniform standard of valuation of general application throughout the district. It is the general standard of uniformity that is the test of the rule. In the present case the general ratio of assessed to actual value throughout the county is sixty per cent and this is the uniform basis with which comparison must be made. It is the general average of assessed valuations in the entire district that most nearly approximates substantial uniformity, and substantial uniformity is the nearest approach yet made in the administration of tax laws to the requirements of the constitution. If the rule were otherwise, it is perhaps not too much to say that on appeal no tax assessment case would stand the test. It would be a rare case in which undervaluation in a few tracts could not be pointed out. It is the duty of all taxing authorities to avoid such discriminations and to insist upon a uniform basis of determining valuations for the purpose of taxation. The courts, however, can only exercise authority in the cases brought before them on appeal and have no power to revise and equalize assessments generally. On appeal it is the duty of the court, having due regard to the valuation and assessment of other real estate in the same district, to first ascertain the ratio of assessed to actual value applicable generally throughout the district, and then, when the actual value of the tract or tracts under consideration has been determined, this ratio should be applied. When this is done the result fixes the assessed valuation. This was the rule applied by the court below in the present case. Appellant complains not because it did not have the benefit of this rule but because some other tracts of land in the neighborhood, the valuations of which were not appealed from, were assessed below the uniform standard. In other words, not by reason of failure to assess appellant’s lands according to the uniform rule applied generally in the district, but because some tracts in the neighborhood were assessed below that standard of valuation. We agree with the learned court below that this position is not tenable. Appellant had the right to demand that its lands should be assessed according to the uniform standard of making valuations in the district, but this standard is determined by the general average of valuations and not by the assessment of a few tracts singled out for the purpose of showing undervaluation in some instances. As we view this record the valuation of the lands in question is not too high but the assessments of some other tracts called to our attention, not appealed from, are too low. This situation is beyond our control as courts can only compel a valuation, of the lands under consideration to be made upon the basis of general uniformity in the district.

It is further contended that the court erred in adopting the strict measure rule of superficial areas in determining the total valuation of appellant’s lands while what is known as the official acre was the basis for assessment purposes in other cases. No landowner should be required to pay taxes on more land than he owns and he should not expect to be taxed for less. Because a neighbor may be taxed for a less number of acres than he actually owns is ho reason why a complaining adjoining owner should not be taxed upon the entire number of acres owned by him. The whole superficial area, no matter how large or small, is the subject of taxation. The acre is the unit of measurement and the total valuation depends upon the number of acres contained in the whole tract. There is nothing in this record to show that appellant was taxed for more acres than belongs to it. Presumably the taxing authorities accepted the acreage returned by appellant, and if so, it is not in position to - complain. We know of no rule of law, and none has been called to our attention, to sustain the position that what is called the official acre in the argument of appellant, that is, the acre and allowance as originally authorized in grants from the commonwealth, is the only acre assessable for purposes of taxation. The number of acres recited in the deed is as a rule accepted as the acreage subject to taxation. But this is not always conclusive and on survey it may overrun or fall short of the acreage called for in the deed. In either event the landowner is taxed for the actual acreage owned by him. The actual acreage as we understand the record was used as the basis for making the assessment in the present case and this was proper.

It is further contended that the percentage of increase in the valuation of real estate located in Coal township is much greater than the percentage of increase in other parts of the county and that by reason thereof unjust and excessive burdens are imposed upon appellant. This position is without merit. It might very well be that real estate in Coal township had increased in value 100 per cent while in other parts there might be no increase and in some instances actual depreciation might be shown. Uniform increase in the values of real estate throughout the entire district is not the test of uniform assessments. The assessment is uniform within the meaning of the law if the average ratio of assessed to actual market value is applied in determining the valuation of each separate tract. Some complaint is also made about the foot acre method as a basis for ascertaining the value of a tract of land for the purpose of taxation. This court has already said that this method is exceptional and, in most instances, not a proper basis to determine actual value. When the parties agree to such a method it may be used, but it is not of general application and when adopted the local conditions must be such as to give the whole coal area a present market value to be ascertained upon some definite fixed basis: Lehigh, etc., Coal Co.’s Assessment, 225 Pa. 272. If in the present case the foot acre, rule had been applied there would be ground for reversal because the local conditions are not such as to warrant its application and the parties did not agree upon such a basis. But it was not applied and there is no room for just criticism on this account. It is true there was some testimony taken to show the quantity of coal in certain tracts measured by foot acres but the commission expressly stated that this was only for the purpose of giving some light as to the amount of coal available for mining purposes and to show the conditions existing on the ground. It was not used as a basis of valuation and the commission so stated in express terms. These items of testimony were harmless because the valuations fixed did not depend upon evidence of this character.

Again, it is argued that the valuation of each tract of land was not based upon market value, that is to say, the amount it would bring at public sale after due notice. Under the circumstances surrounding the present case there is no reversible error in this respect. There was no evidence of sales, public or private, and hence nothing-on record to show value upon this basis. In such cases taxing authorities must of necessity have resort to other elements of value in order to make a proper assessment. This question will be discussed more at length in another appeal. Many other questions have been raised but they are incidental to those already discussed and are not controlling as the basis of determining the valuation of the lands involved in this proceeding. Upon the whole record we are of opinion that the evidence amply sustains the conclusions reached by the learned court below in fixing the valuation of appellant’s lands for the purpose of taxation.

Decree affirmed at cost of appellant, costs in court below to be paid as there directed.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Mineral Railroad & Mining Company, Appellant, v. Northumberland County Commissioners
    (No. 2).

      Taxation — Assessments—Goal lands — Market valve.

    1. In fixing the assessment the purchase price of coal lands in 1870 with testimony tending to show that there had been no increase in value since that time, may be some evidence of market value, but it is very remote and not the best evidence and the court will not consider it as conclusive where other and better evidence could have been produced by the owner.
    2. Virgin unproductive coal lands should not be valued higher than lands being operated from which a portion of the coal has been mined. Where lands are being operated allowance should be made for the acreage exhausted.
    3. When coal lands are valued for taxation according to the ratio of assessed to actual value of other real estate in the county, the owner cannot complain.
    Argued Oct. 6, 1910.
    January 3, 1911:
    Appeal, No. 15, Jan. T., 1910, by plaintiff, from decree of G. P. Northumberland Co., Dec. T., 1907, No. 338, fixing valuation of coal lands in case of Mineral Railroad & Mining Company v. Northumberland County Commissioners.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from valuation of coal lands.
    For the facts see Mineral Railroad & Mining Co. v. Northumberland County Commissioners, supra, and the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      W. II. M. Oram, for appellant.

      J. W. Gillespie, for appellee.
   Opinion by

Mr. Justice Elkin,

What was said in the preceding case applies to the questions raised by this appeal. The lands involved in this proceeding are owned by the same appellant but are located in Mt. Carmel township. The hearing was conducted and the valuations fixed in the same way in both cases. The rules of law applicable are the same and the assignments are intended to set out the same kind of errors. It, therefore, will be unnecessary to elaborate the discussion in disposing of this appeal. Many of the assignments of error do not comply with the rules of this court and might be dismissed upon technical grounds. Although there are many assignments there is but one fundamental and controlling question for this court to review, and that is, did the learned court below make a fair and just valuation of the coal lands of appellant having due regard to the valuation and assessment of other real estate in the county? For the reasons stated in the preceding opinion we think the answer must be in the affirmative. The valuation of each tract was fixed at sixty per cent of its actual market value. This, it is conceded, was the average ratio of assessed to actual value applied generally to the. assessment of real estate throughout the county. Appellant had the benefit of this reduction and instead of being taxed on full value only pays taxes upon a valuation representing three-fifths of the actual value. Of course there is difference of opinion as to the actual market value of the properties in question and also as to the proper method of determining those values. It is contended that the court below made no effort to value the lands upon the basis of present market value and complaint is made because the evidence of' deeds produced at the hearing which showed the purchase price in 1870, supplemented by expert testimony to the effect that the lands had not increased in value, was disregarded. So far as we have been able to discover from the record this was the only attempt made by appellant to prove the present market value of its lands. We are not prepared to say that the purchase price of lands in 1870, followed by expert testimony tending to show that there had been no increase in value since that time, is not some evidence of market value, but to say the least it is very remote and certainly not the best evidence available to establish present market value. Appellant being the owner for such a long period of time presumably had the best knowledge of the actual value of the lands and could have produced witnesses to prove present values. It did not do so and the inference is that it did not deem it advisable so to do. The appellees, not having knowledge of any sales or selling price, had of necessity to prove other elements of value as a basis to fix a fair valuation. The court took all of these things into consideration in ascertaining what it considered an equitable valuation for assessment purposes. A careful examination of this record has convinced us that the valuation of the lands of appellant fixed by the court was amply sustained by the evidence, that it was not higher than its present market value, and when the assessment was made at sixty per cent of the value so determined there was compliance with the constitutional provision requiring uniformity. When the valuation of these coal lands was made according to the ratio of assessed to actual value of other real estate in the county the court acted within the reason and spirit of the act of 1889.

It is argued for appellant that virgin unproductive coal lands should be valued higher than lands being operated from which a portion of the coal has been mined. This position is inconsistent with the theory mainly relied on by appellant and is unsound in principle as applied to the valuation of lands for assessment purposes. It makes quantity the basis of valuation and this is strongly objected to in other parts of the argument. It also ignores selling price at a bona fide sale as the measure of assessable value. The test is what would the land sell for on the market after due notice. It is a matter of common knowledge and experience that a developed going coal property has a higher value acre for acre of coal than undeveloped and unproductive virgin lands. Of course as the coal is mined and removed there should be an allowance for the acreage- thus exhausted. It is the coal in place that is taxed as real estate, and if the coal be entirely exhausted there is nothing to tax on this account, or if it be partly mined and removed, the acreage remaining is the subject upon which the assessment operates. It is true where there has been no severance of the coal from the surface the superficial area is the subject for taxation, but when the coal is exhausted the value of the surface is as a rule only nominal, and when the coal is partly mined, its value is reduced by the coal acreage thus removed. Due allowance for the number of acres of coal mined should be made by assessors and all others having to do with fixing valuations for the purpose of taxation. In the present case allowance was made and appellant is not in position to complain. We find nothing in the record to warrant a reversal.

Decree affirmed at cost of appellant, costs in the court below to be paid as there directed.


text:
    Philadelphia & Reading Coal & Iron Company, Appellant, v. Northumberland County Commissioners.

      Taxation — Assessments—Regulation by statute — Public officers— Powers.

    1. The law governing assessments of land for the purpose of taxation is statutory, and neither the assessors, county commissioners, boards of revision, nor the courts on appeal have authority to proceed in any other manner than is prescribed by the statutes.

      Taxation — Assessments—Coal lands — Foot curre rule — Northumberland county lands.

      2. As a general rule the foot acre basis of ascertaining assessable value is exceptional, not of general application, and when applied to coal lands the local conditions must be such as to give the whole coal area a present market value which can be ascertained upon some definite fixed basis. The rule is not applicable to the conditions which exist in the coal formations of Northumberland county, and in the absence of an agreement of the parties the court cannot consider it in assessing values.

      Taxation — Assessments—Appeals—Burden of Proof — Actual value— Sales.

    3. Assessors and all other taxing authorities are required to assess, rate and value every subject of taxation for local purposes according to the actual value thereof, and at such rates and prices as the same would bring at a bona fide sale after due notice. If the evidence shows recent bona fide sales of tracts under consideration, or of tracts similarly situated in the neighborhood, and of like quality, the general selling price thus established would be the market value, that is if all the conditions are the same. If, however, there be no such sales, and no general asking or selling price in the neighborhood is shown, an assessor must of necessity use his best judgment in determining what lie believes the land would sell for at a bona fide sale after due notice. The assessor may avail himself of the knowledge and experience of persons qualified to form an intelligent judgment on the subject, and may take into consideration all matters affecting probable selling price, such as location, condition, improvements, quality of land or coal, and any other element of value that would influence the mind of a purchaser.
    4. Where an appeal is taken to the court of common pleas from a tax assessment, the proceedings in court are de novo and a prima facie case is made out by the public authorities when the valuation of each tract, and the data affecting the same on record in the office of the board of revision, are offered in evidence. The burden is then on the appellant to show by the weight of the evidence that the valuation was unjust, inequitable, not uniform in comparison with the valuation of other real estate in the district, and not made upon a proper legal basis. If the appellant fails to show this the assessment will stand.
    5. In ascertaining the value of coal lands for tax purposes quantity may be considered, but only in connection with the conditions and circumstances surrounding each particular case. The owner has no reason to complain if the court arrives at an assessment from an independent consideration of all the conditions without particular reference to quantity.
    6. Where on an appeal from an assessment of coal lands it appears that the parties agreed that a commission should be appointed for the purpose of ascertaining the facts for the information and guidance of the court, the court is not bound to accept the report of the commission as conclusive. The court itself must fix the valuation having due regard to the valuation and assessment of other real estate in the district.

      7. Coal land must be assessed at its market value ascertained, not at any future period, but at the time of the assessment. The question is not what earning or productive power coal lands may develop in the future, but what they are actually worth on the market at present.
    8. Unseated coal lands should be assessed in the district where located, and if a tract be divided by a township line, each part thereof should be valued and assessed upon the acreage in the respective townships.
    9. In ascertaining the present market value of a tract of virgin coal land the taxing authorities may in general take into consideration facilities for transportation; how far the tract is located from a railroad; what the cost of putting it in operation will be; what is the quality, as well as the quantity of the coal; what are the mining conditions in the region; how many years will be required to mine, remove and market the coal; how many years will the money invested be on interest; and all other matters which in the mind of a contemplating purchaser would add to or detract from the value of the property; but after all this is said, much must be left to the honest judgment and intelligent discretion of the taxing authorities.
    Argued Oct. 7, 1910.
    Appeals, Nos. 22, 23, 24, 25, 32, 33, 34 and 35, Jan. T., 1910, by plaintiff, from decree of C. P. Northumberland Co., Dec. T., 1907, Nos. 317, 320, 321, 327, 319, 324, 326 and 327, assessing coal lands in case of Philadelphia & Reading Coal & Iron Company v. Northumberland County Commissioners.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from tax assessment. Before Savidge, P. J., and Auten, J.
    The facts appear by the report of Mineral Railroad & Mining Co. v. Northumberland County Commissioners, supra, and the opinion of the Supreme Court, infra.

      Error assigned amongst others was the decree of the court.

      S. P. Wolverton, with him S. P. Wolverton, Jr., for appellants.
    The law governing assessments of. land for the purpose of taxation is statutory, and neither the assessors, the commissioners on appeal or the court on appeal from the commissioners’ decision have any authority to proceed in any other manner than that pointed out by the acts.
    All the definitions of market value contemplate a sale: Searle v. R. R. Co., 33 Pa. 57; Reading & Pottsville R. R. Co. v. Balthaser, 119 Pa. 472; Becker v. R. R. Co., 177 Pa. 252; Baker v. R. R. Co., 219 Pa. 398.
    The acts of assembly under which the assessments were made do not authorize the township assessors or the court on appeal, to ascertain the market value of the different tracts by means of calculating the quantity of minerals in the lands, the profits made in mining the minerals or going into any uncertain or contingent calculations, but only requires them to assess and value the real estate at such rates, and prices for which they would separately bona fide sell: Curtin v. R. R. Co., 135 Pa. 20; Com. v. Pocahontas Coal & Coke Co., 60 S. E. Repr. 84; Lehigh & Wilkes-Barre Coal Co.’s Assessment, 225 Pa. 272; Berwind-White Coal Mining Co. v. Clearfield County, 18 Pa. C. C. Rep. 545.
    The assessment should be of each tract and its market value ascertained, not at any future period, but at the time of the assessment: Baker v. Pittsburg, etc., R. R. Co., 219 Pa. 398; Curtin v. R. R. Co., 135 Pa. 20.

      J. W. Gillespie, for appellee.
    The conclusion reached by the court was proper: Greenough v. Fulton Coal Co., 74 Pa. 486; Ins. Co. v. Yard, 17 Pa. 331; Hosack v. Crill, 18 Pa. Superior Ct. 90; Murray’s Est., 216 Pa. 270; Dorr v. Reynolds, 26 Pa. Superior Ct. 139; Pringle’s App., 6 Kulp, 525; Del., Lack. & Western R. R. Co.’s Tax Assessment, 224 Pa. 240; Bell’s App., 11 Pa. Dist. Rep. 732; Hamilton’s App., 14 Pa. Dist. Rep. 655; Irwin Basin Coal Land’s Assessment, 17 Pa. Dist. Rep. 825; Sanderson v. City of Scranton, 105 Pa. 469; Del., Lack. & Western R. R. Co. v. Sanderson et al., 109 Pa. 583; Kingsley v. Hillside Coal & Iron Co., 144 Pa. 613; Plummer v. Hillside Coal & Iron Co., 160 Pa. 483; Lehigh, etc., Coal Co. v. Wright, 177 Pa. 387.
    January 3, 1911:
   Opinion by

Mr. Justice Elkin,

We agree with almost every proposition of law advanced by learned counsel for appellant in support of the contention that the valuations of the several tracts of coal lands involved in this proceeding were not made upon an equitable basis nor in conformity with constitutional requirements. But because we agree with the statement of the rules of law relied upon it must not be understood that we are convinced of error in the conclusions reached by the learned court below. The positions of appellant set forth in the argument will be considered and discussed in the following order, to wit:

First, that the law governing assessments of land for the purpose of taxation is -statutory, and neither the assessors, county commissioners, boards of revision, nor the courts on appeal have authority to proceed in any other manner than is prescribed by the statutes. To state this proposition is to answer it. Taxation is an incident of sovereignty but the power to levy and assess taxes and the methods of making valuations and assessments depend upon legislative authority. There is no implied power to impose taxes. While the individual owner is vested with the absolute title to his property, he holds it subject to the sovereign power of the state, or of its municipal divisions when so empowered, to impose taxes for the purpose of meeting the public burdens. The demand for taxes on the individual owner must be based upon express legislative authority prescribing the method of determining his share of the burden, otherwise there would be no definite basis of fixing the proportion of that burden which his property should bear. We agree, therefore, that all authorities having to do with the valuation and assessment of lands and the levy and collection of taxes must look to the statutes dealing with the subject for their authority to act.

Second, that the foot acre rule for ascertaining the valuation of the coal lands of appellant for the purpose of taxation is not a proper measure of their value and under existing local conditions should not be used as a basis of valuation. With this position we also agree. This court held in a recent case from Luzerne county that, “It may be stated as a general rule that the foot acre basis of ascertaining assessable value is exceptional, not of general application, and when applied to coal lands, the local conditions must be such as to give the whole coal area a present market value which can be ascertained upon some definite fixed basis:” Lehigh, etc., Coal Co.’s Assessment, 225 Pa. 272. The foot acre rule would reduce all valuations to a quantity basis which in the very nature of coal deposits would be in many instances no real measure of actual value. We entirely agree with the learned counsel for appellant that in the valuation of coal lands in the region where the properties in question are located due consideration must be given to actual conditions existing in the coal formations. Among the things to be considered are thickness of vein, stratification, depth, quality, quantity, pitch of vein, nature of top, character of separating rock formation, kind of overlying surface, location of the tract as to the strike of the vein, difficulty of mining, whether of a gaseous or nongaseous nature, and other matters of like character which by business experience are considered elements in determining the value of coal properties. As shown by the testimony the conditions in the coal formations of Northumberland county are very different from those existing in other parts of the anthracite coal fields of Pennsylvania and these conditions make mining more expensive and limit the amount of coal that can be mined from each acre. Of course these things affect the value of the lands and should be taken into consideration in making assessments for taxation purposes. But there is nothing in this record to show that the court below failed to consider these local conditions in ascertaining the assessed value of the different properties or that the foot aere rule was adopted as a basis of valuation.' Indeed, the tax commission expressly-stated that the foot acre cannot under our decisions be used as the unit of value except by agreement and as the parties did not so agree this method was not adopted. The opinion of the court is conclusive that no such method was in mind when the values were determined. This is a complete answer to the contention as to the foot acre basis. It was not used except incidentally as a means of making comparison of the quantity of coal in lands similarly situated.

Third, that assessors and all other taxing authorities are required to assess, rate and value every subject of taxation for local purposes according to the actual value thereof, and at such rates and prices as the same would bring at a bona fide sale after due notice, This is the law. It is so provided in the acts of 1841 and 1842 under the authority of which the valuation and assessment of lands are made. The latter act prescribes the form of oath to be taken by assessors and requires each separate tract with the improvements thereon to be valued at the price which in the honest judgment of the assessor it would sell for if sold singly and separately at a bona fide sale after due notice. These statutes have thus declared the rule for the valuation of real estate and the courts as well as all other authorities having to do with the enforcement of the law are bound and limited by it. As has been well said by some of our lower courts the only measure of valuation recognized by law is market value as distinguished from actual value; or, differently expressed, actual value limited and defined by market value. It is true, as is contended for appellant that the general rule in Pennsylvania is that market value means the price or value of an article established or shown by sales, public or private, in the way of ordinary business. As applied to the valuation of real estate in a proceeding like the one at bar, if the evidence shows recent bona fide sales of the tracts under consideration, or of tracts similarly situated in the neighborhood and of like quality, the general selling price thus established would be the market value within the meaning of the law, that is, if all the conditions are the same.' But the market value of each tract necessarily depends very largely upon its particular location, improvements, quality, conditions and the environment peculiar to it. If, however, there have been no recent sales of the lands under consideration, or of other lands of like quality similarly situated, or no general asking or selling price in the neighborhood is shown, an assessor must of necessity use his best judgment in determining what he believes the land would sell for at a bona fide sale after due notice. The authority of an assessor to exercise his judgment based upon a belief of what he considers the bona fide selling price to be, is expressly conferred by the statutes above referred to. In the absence of evidence of actual sales the assessor as well as every other taxing authority should take into consideration all elements tending to appreciate or depreciate market value. This is what was done in the present case. There were no recent sales either of the lands in question or of others similarly situated and hence no evidence of this character could be produced. Appellant did not attempt to prove present market value upon the basis of selling price at a bona fide sale and appellees were unable to do so. Whenever it can be ascertained by sales of lands of like quality similarly situated, or by recent sales of the lands being assessed, the statutory rule contemplates this method of establishing market value. If, however, there were no sales from which the general selling price might be ascertained, the market value may be established by the testimony of persons acquainted with the property, and whose knowledge and experience qualify them to form an intelligent judgment as to its proper valuation. In such cases it is proper to adduce evidence upon all matters affecting probable selling price, such as location, condition, improvements, quality of land or coal, and any other element of value that would influence the mind of a purchaser: Pittsburg, etc., R. R. Co. v. Patterson, 107 Pa. 461; Pittsburg, etc., Ry. Co. v. Vance, 115 Pa. 325. This rule is recognized in many cases as applied to condemnation proceedings and we see no reason why it should not be applied in the valuation of lands for assessment purposes. In the present case the market value was shown by the testimony of mining engineers and under the circumstances it was the best evidence available. Again, it should be remembered, that when the cases came into the court of common pleas on appeal the proceedings were de novo and a prima facie case was made out by the appellees when the valuation of each tract and the data affecting the same on record in the office of the board of revision, were offered in evidence. The burden was then on appellant to show by the weight of the evidence that the valuation was unjust, inequitable, not uniform in comparison with the valuation of other real estate in the district, and not made upon a proper legal basis. The court found against appellant on the contentions as to inequality and failure to value uniformly and no evidence was offered to establish present mai’ket value upon the basis of selling price. Under these circumstances we cannot say the court acted in a manner not warranted by the evidence and the record as it stood, nor that the conclusions reached are erroneous.

Fourth, that the statutes under which assessments are made do not authorize the township assessors or the courts on appeal, to ascertain the market value of the several tracts of coal land by calculating the quantity contained in the different veins, the profits earned in mining, or in considering any uncertain and contingent conditions incident to mining operations, but does require them to assess and value such lands as real estate at such rates and prices as they in the exercise of an honest judgment believe the tracts would sell for if sold separately at a bona fide sale. This in the main is a correct statement of the law. It, however, does not mean that quantity may not be considered as an element of value, because in many instances it is a very important consideration in determining selling price in the minds of both owner and purchaser. It is true in many cases quantity would be an unjust, unfair and inequitable measure of value. Much depends upon the conditions and circumstances surrounding each particular case. Location, accessibility to markets, transportation facilities, cost of opening and operating, and quality with reference to commercial uses, are frequently more important in determining market value than mere quantity. In the present case the record does not show that quantity, estimated profits, contingent and speculative possibilities, were used as the basis of ascertaining the assessed value and therefore the learned court below cannot be convicted of error upon these grounds. The tax commission may have heard some testimony along these lines and perhaps adverted to some matters of this character in their report to the court but the valuations recommended were based upon what they believed was a fair market value of the lands under consideration after a personal investigation of the several tracts supplemented by the opinions of mining engineers with knowledge and experience. The court did not in every instance adopt the valuation of the tax commission but exercised its best judgment based upon the whole record presented for its consideration. It was its duty so to do. The power to hear and determine was lodged in the court and not in the tax commission which only acted as an aid to the court. Appellant complains that the court did not regard and accept the report of the tax commission as conclusive. It is stated that this was the understanding of the parties and they should be bound by it. The difficulty with this position is that the record does not sustain it. The record shows that the commission was appointed by consent of all parties for the purpose of ascertaining the facts for the information and guidance of the court. The court acted upon this assumption and we think properly so. The act of 1889 imposes the duty upon the court and does not authorize the appointment of a commission to determine valuations on appeal. Such a commission would be without authority to act except under the direction of the court to ascertain and report facts and conclusions. In the final analysis the court alone, having due regard to the valuation and assessment of other real estate in the district, had the power on appeal to fix the valuation of the several tracts of land involved.

Fifth, that each tract should be assessed at its market value ascertained, not at any future period, but at the time of the assessment. There is no room for doubt as to this being the’ law. It is argued that in some of the hypothetical questions put to engineers called as witnesses the effort was made to ascertain the value of tracts-of virgin coal not being developed by first estimating the quantity of coal in all the veins underlying said tracts, then making allowances for the number and thickness of veins, mining conditions that might arise, the cost and' difficulty of operating, the water to be encountered and other like considerations, the present value would be represented by the quantity of coal remaining and available for market after making due allowance for all of these things. We fully agree that this method of determining assessable value of coal lands is too technical and is subject to too many contingencies to be of practical application in the administration of tax laws. If we were convinced that the conclusions of the court below were based upon such considerations it would be our duty to reverse the decree in this case. We are not so convinced, but on the other hand, are of opinion that the court did not base its conclusions upon contingencies and calculations of this character. In a recent case this court, in passing upon a somewhat similar question, said: “Its market- value is its fair selling value for cash, not payable as royalty, strung out through a long series of years, but payable at the time it was taken by the defendant, or as soon thereafter as the value could be determined:”' Baker v. Pittsburg, etc., Ry. Co., 219 Pa. 398. Such a method does not make allowance in undeveloped territory for the length of time the coal may lie in the ground unmined, undeveloped and unproductive. It is impossible to reduce to a scientific basis and to mathematical precision the elements of value entering into the present selling price of a tract of coal land. Common sense and practical every day business experience are the best guides for those intrusted with the administration of tax laws. Taxation is a practical and not a scientific problem. The question is not what earning or productive power coal lands may develop in the future but what they are actually worth on the market at present. This is the lawful method of valuation for taxation purposes. Departure from this statutory and practical method has given rise to confusion and is not to be commended. In the present case appellant did not offer any testimony to prove the present market value of its coal lands and upon the whole record we are of opinion that the court below did not unjustly or inequitably value these properties either as to their present market value or in comparison with the valuation of other real estate in the district.

Sixth, that unseated coal lands should be assessed in, the district where located, and if a tract be divided by a township line, each part thereof should be valued and assessed upon the acreage in the respective townships. This rule is too well settled to need discussion. It is difficult for us to determine from the record whether this rule has been violated. If it has the correction can be easily made when the record is remitted. What we now decide is that the valuations made by the court below are sustained. If any of these lands have been doubly assessed in both townships, or if any tract divided by a township line has been assessed upon the entire acreage in one township, the court below is authorized and directed to make the correction when the facts are ascertained.

Seventh, that in ascertaining the present market value of a tract of virgin coal land there should be taken into consideration facilities for transportation; how far the tract is located from a railroad; what the cost of putting it in operation will be; what is the quality as well as the quantity of the coal; what are the mining conditions in the region; how many years will be required to mine, remove and market the coal; how many years will the money invested be on interest, and all other matters which in the mind of a contemplating purchaser .would add to or detract from the value of the property. It may be conceded that all of these things do affect the value of an undeveloped coal property and in a general way should be taken into consideration by any one attempting to fix a value upon it. A property that may not be developed for fifty years and when operated may require 100 years to exhaust does not have the same present market value as one fully developed and productive. Of course these conditions influence market value and they should be taken into consideration by assessors and others having to deal with this subject. It is difficult to lay down any hard and fast rule defining in what manner and to what extent the value of a particular tract should be affected by such considerations. After all, much must be left to the honest judgment and intelligent discretion of the taxing authorities. At most the courts can only lay down general rules for their guidance.

It will thus be seen that we agree with the learned counsel for appellant as to the law governing valuations and assessments, but it does not necessarily follow that error was committed by the court below in fixing the valuations in question. The weakness of appellant’s case is that while contending with marked ability for the rule making actual market value the standard of assessed value, it introduced no evidence to show present market value or to establish general asking or selling price of coal lands in the neighborhood. No attempt was made to inform the court as to appellant’s estimate of present-market value. Appellant was the best judge of the value of its own lands but failed to give the court the benefit of its knowledge. Without such information the court did the best that could be done under the circumstances. It had before it the assessor’s return, the valuation fixed by the board of revision, the report of the tax commission, the benefit of the personal investigation made by the commissioners, the testimony of many witnesses dealing with every phase of the subject and the conditions upon the ground, and had knowledge of the valuation of other real estate in the district of like character similarly situated. With all of these facts before it the court found the valuation fixed by the decree. We cannot say there was error in so doing. By agreement all of these appeals were presented and argued together. Therefore the decree entered in this case will be regarded as applicable to each separate appeal and may be so entered and recorded.

Decree affirmed subject to such modification as the court below is directed to make in the event it shall be ascertained that tracts divided by township lines were improperly assessed. Costs of this appeal to be paid by appellant and in the court below as there directed.


author: Per Curiam,

text:
    Fry’s Estate.

      Decedents’ estates — Claims—-Parent and child — Evidence—Auditor— Witness — Party dead.

    1. Where claims presented by a son against his deceased father’s estate are based only on loose declarations and admissions, and are rejected by the auditor for want of direct and positive proof, the Supreme Court will not reverse a decree of the orphans’ court dismissing exceptions to the auditor’s report.

      Evidence — Incompetency—Witness—Act of May 23, 1887, P. L. 158.

      2. A son who presents claims as a creditor against his father’s estate is an incompetent witness in support of such claims.
    Argued Oct. 10, 1910.
    Appeal, No. 14, Oct. T., 1910, by Frank Fry, from decree of O. C. Indiana Co., June T., 1905, No. 6, dismissing exceptions to auditor’s report in Estate of James Fry, deceased.
    January 3, 1911:
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of W. F. Elkin, Esq., auditor. Before Telford, P. J.
    The opinion of the Supreme Court states the case.

      Errors assigned were in dismissing exceptions to auditor’s report.

      H. W. Storey, with him J. Wood Clark, for appellant.

      W. B. Sands and Samuel Cunningham, with them J. S. Fisher, for appellee.
   Per Curiam,

The claims presented by the appellant against his father’s estate were for money loaned, for money paid to a third person on his father’s account and for the amount of a bank deposit in the name of his father. They were supported only by oral testimony of loose declarations and admissions and were rejected by the auditor for want of direct and positive proofs. These claims were of a class requiring the closest scrutiny. Pollock v. Ray, 85 Pa. 428; Walls’s App., 111 Pa. 460, and we find no error in their rejection.

The appellant was incompetent as a witness in support of his claim and his testimony was properly excluded. He did not claim, as argued, by devolution but as a creditor and therefore had no standing under the exceptions of clause E, sec. 5, of the Act of May 23, 1887, P. L. 158. The order of the court dismissing exceptions to the report of the auditor is affirmed at the cost of the appellant.


author: Mr. Justice Stewart,

text:
    Leard v. Pennsylvania Railroad Company, Appellant.

      Railroads — Eminent domain — Condemnation proceedings — Witness— Evidence — Damages.
    1. When, in a proceeding to assess damages for land taken by a railroad company, a witness is called to prove the market value of the land, it is the right of the other side, before the witness proceeds, to inquire as to his qualifications to express an opinion on the subject. When this right has been exercised or waived, and the witness admitted, after he has testified to the market value of the land at the time of its appropriation, his competency to testify to the market value as affected by the construction of the railroad, follows as matter of course.
    2. After the competency of such a witness has been established it is not error for the court to refuse to permit him to be interrupted so as to allow counsel, before the witness has expressed an opinion, to inquire of him what elements of damage he had taken into consideration in making his estimate.
    3. The construction of bridge piers in the bed of a navigable stream may be taken into consideration as an element of damages in condemnation proceedings where the evidence shows that the piers changed the current of the stream so as to endanger the plaintiff’s land in times of ordinary high water and freshets. In such a case where a number of competent witnesses testify that in such freshets as might be expected to take place at that locality, some thirty-seven acres of plaintiff’s land would be exposed to invasion by water, the question whether their testimony is sufficient to establish a degree of probability amounting to a reasonable certainty that the apprehended danger will be realized, is a question for the jury.
    Argued Oct. 10, 1910.
    Appeal, No. 114, Oct. T., 1910, by defendant, from judgment of C. P. Indiana Co., Sept. T.', 1906, No. 157, on verdict for plaintiff in case of M. K. Leard et al. v. Pennsylvania Railroad Company.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Telford, P. J.

      At the trial after William Nesbitt, a witness for the plaintiff, had testified as to his qualifications he was asked this question:
    “Q. From your knowledge of the land since the construction of the railroad, what would you say was the market value of the real estate immediately after the appropriation and construction of the railroad, as affected by it? ”
    Mr. Banks: We propose to inquire of the witness what he embraces in his estimate of depreciation as to the value of the land, for the purpose of ascertaining whether or not he takes the elements that are competent to be taken into consideration in his estimate of the value of the land since the construction of the railroad as affected by it.
    The Court: Motion for leave to cross-examine the witness at this point in his examination in chief is refused, an exception is noted to defendant and bill sealed. [1]
    Mr. Peelor: Question read. “A. One-half less. Q. State whether or not you mean for the whole farm? A. Yes, sir, one-half less for the whole farm.”
    The court charged in part as follows:
    [The plaintiffs also claim additional injury, which they claim will be a consequence following the construction of the bridge and the fill, that is that the river in high stages of water or in case of ice gorges at or above the bridge, the water will be thrown out of the river channel and will injure or destroy some thirty-seven acres of bottom land above the bridge. There has been some evidence of the character of floods that have occurred on this river prior to the construction of the fill and'bridge; also evidence of the character of the banks and depressed lands some 200 or 300 feet beyond the river bank. From what floods have occurred and from the character of the river bank and land adjoining at or near the north side of the bridge and fill, you are asked to assume that such floods as have occurred will occur again in the future, and when they do occur, in consequence of the bridge impeding and obstructing the natural flow of the water, the bank will be overflowed and channels cut through the low lands above the bridge, injuring the defendant’s property. If you will find that such a danger is impending, and that the bridge or fill or both will be the proximate cause of such injury, then it will be proper for you to consider it as it may affect the market value of the farm.] [6]
    Verdict and judgment for plaintiff for $7,750. Defendant appealed.

      Errors assigned were (1) ruling on evidence, quoting the bill of exceptions, and (6) portion of charge as above, quoting it.

      J. N. Banks, with him Samuel Cunningham and J. S. Fisher, for appellant.
    The court should have allowed the question asked Nesbitt: Davis v. R. R. Co., 215 Pa. 581; Wallace v. Jefferson Gas Co., 147 Pa. 205; Reading, etc., R. R. Co. v. Balthaser, 119 Pa. 472.
    There is no liability on part of a railroad company for not providing against extraordinary floods or extraordinary ice gorges: Pittsburg, etc., Ry. Co. v. Gilleland, 56 Pa. 445; Berninger v. R. R. Co., 203 Pa. 516; Denniston v. Phila. Co., 161 Pa. 41.
    A railroad company in the reasonable exercise of its franchise has the right to erect a bridge over a navigable stream, and is only liable for negligence in construction of the bridge: Jutte v. Keystone Bridge Co., 146 Pa. 400; Braine v. Northern Cent. Ry. Co., 218 Pa. 43; Denniston v. Phila. Co., 161 Pa. 41.

      Elder Peelor, with him George J. Feit and M. C. Watson, for appellees.
    The plaintiffs had a right to recover for loss of market value by reason of- danger of floods of which the bridge and fill were the proximate cause: Constitution of Pennsylvania, art. XVI, sec. 8; Mellor v. Phila., 160 Pa. 614; Cooper v. Scranton City, 21 Pa. Superior Ct. 17; Snyder v. City of Lancaster, 20 W. N. C. 184.
    January 3, 1911:
   Opínion by

Mr. Justice Stewart,

The first and third assignments are without merit. When, in a proceeding to assess damages for land taken by a railroad company, a witness is called to prove the market value of the land, it is the right of the other side, before the witness proceeds, to inquire, as to his qualifications to express an opinion on the subject. When this right has been exercised or waived, and the witness admitted, after he has testified to the market value of the land at the time of its appropriation, his competency to testify to the market value as affected by the construction of the railroad, follows as matter of course. The ruling here complained of was the refusal of the court to permit interruption at this stage of the case to allow counsel for the defendant, before the witness had expressed an opinion, to inquire of him what elements of damage he had taken into consideration in making his estimate. Such an examination would not have affected the competency of the witness. That had beén established. If it appeared that he had abated somewhat from the market value before the appropriation because of something which the law would exclude from consideration, it would simply show a mistake on his part which could be corrected then and there, with equal effect whether during his examination in chief or upon cross-examination.

An' element of damage considered in the case was the liability of plaintiff’s land to flooding because of a bridge erected by the defendant company over the Conemaugh river at this point. The bridge is supported by piers which rest on the river bed, and it was claimed that a change in the current of the stream had resulted in consequence; that it now flows towards plaintiff’s land whereas before the flow was to the opposite bank, thus endangering plaintiff’s land in times of high water and freshets. Inasmuch as the danger does not arise from anything done on the land of plaintiff’s which was appropriated by the defendant company, it is contended that it was not an element of damage to be considered. This same question was presented in the case of White v. Penna. R. R. Co., post, p. 480, decided at this present term, and was there fully considered. The ruling in that case applies here. If the liability to flooding because of the bridge piers is so pronounced as to reduce the market value of the land, the plaintiff is entitled to be compensated therefor notwithstanding the piers from which the danger arises are in the bed of a navigable stream. The chief contention was that because of the configuration of the plaintiff’s land it could be endangered by nothing short of an extraordinary flood; and that this much is to be derived from plaintiff’s own witness. The argument on this proposition is not convincing; that is to say, the .proposition is not sufficiently established to justify a court in ruling as matter of law that the evidence amounts to nothing more than a mere conjectural probability of a future flooding. A number of witnesses familiar with the conduct of the river, and acquainted with the general situation in the neighborhood of the bridge, testified that in such freshets as are there to be expected, some thirty-seven acres of plaintiff’s land would be exposed to invasion. There can be no question as to the competency of these witnesses. Whether their testimony was sufficient to establish a degree of probability amounting to a reasonable certainty, that the apprehended danger would be realized, was a question for the jury. The instruction of the learned trial judge on this branch of the case was most explicit. His instruction to the jury was as follows: “The effect of extraordinary floods, the occurrence of which is not looked for and unexpected, you will not consider. Whether or not the floods concerning which witnesses have testified as occurring in the river at this point, by reason of regular or frequent occurrences, may be regarded as ordinary, and their occurrences may be expected and naturally anticipated, is for the jury to determine.” We find nothing in any of the assignments of error calling for a reversal.

Judgment is affirmed.


text:
    White v. The Pennsylvania Railroad Company.

      Railroads — Eminent domain — Bridges—Navigable streams — Flooding lands — Compensation.
    1. A franchise granted by the commonwealth for the erection of a bridge over a stream the bed of which is exclusively in the commonwealth carries with it the right to use the bed of the stream for the necessary piers but it does not and cannot exempt the party exercising the franchise from liability for injury to property belonging to private parties occasioned by the bridge, as a structure causing the flooding of their lands, and this is so whether the piers are located partly on the land condemned or all in the bed of the stream. When land is flooded by the erection of a bridge over a navigable stream by a railroad company, and its value thereby impaired, it is in effect a taldng of the land itself and, as for any other taldng of land for public use, compensation is the condition.

      Evidence — Witness—Market value — Productiveness of land — Condemnation — Railroads.
    2. A witness called on behalf of the plaintiff in a condemnation proceeding to testify to the market value of plaintiff’s farm, who repeatedly admits in his preliminary examination that he has no familiarity with the market value of land in the neighborhood and when testifying in chief as repeatedly says that the estimate he gave was not a market value but a value based on what he thought the farm would produce, is clearly incompetent and it is error not to exclude his testimony.
    Argued Oct. 10, 1910.
    Appeal, No. 115, Oct. T., 1910, by defendant, from judgment of C. P. Indiana County, Sept. T., 1906, No. 160, on verdict for plaintiff in case of James H. White, Jr., v. The Pennsylvania Railroad Company.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Reversed.

      January 3, 1911:
    Appeal from the award of a jury of view. Before Tel-ford, P. J.
    The opinion, of the Supreme Court states the case.
    Verdict for plaintiff for 88,683, and judgment thereon.

      Errors assigned were (1-3) and (5-7) rulings on evidence; (4) refusal of court to strike out estimate of market value of plaintiff’s farm made by Robert Nesbitt; and (8-10) various instructions of the court.
    J. N. Banks, with him Samuel Cunningham and J. S. Fisher, for appellant.
    Where a railroad company exercises its right of eminent domain on lands not that of the complainant, and does it in a lawful manner without negligence or malice, there can be no recovery for injuries: Braine v. Northern Cent. Ry. Co., 218 Pa. 43; Jutte v. Keystone Bridge Co., 146 Pa. 400; Berninger v. Sunbury, etc., R. R. Co., 203 Pa. 516.
    Supposed profits from conducting a farm is not proper matter upon which to base value: Cox v. Phila., H. & P. R. R. Co., 215 Pa. 506.

      M. C. Watson, with him Elder Peelor and George J. Feit, for appellee. — The principle of Mellor v. Phila., 160 Pa. 614, governs this case.
   Opinion by

Mr. Justice Stewart,

The plaintiff is the owner of a tract of land in Indiana county bordering on the Conemaugh river. With a view to straighten and otherwise improve its line of road, the defendant company appropriated by condemnation proceeding something over four acres of this land. At this point the defendant company constructed a bridge for its roadbed over the river. The near abutment and two of the piers rested on the land which had been appropriated, the second pier being near the low water lines; the other piers, four in number, rested on the bed of the river. Evidence was offered by the plaintiff and admitted, tending to show that the erection of the bridge had changed the current of the river; that whereas, before this Obstruction to the flow was placed there, the current was against the opposite bank, it is now in consequence of the obstruction turned in the direction of plaintiff’s land, with the result that in stages of high water and ordinary freshets a considerable part of plaintiff’s land is flooded and otherwise injured. This circumstance was claimed and allowed as an element of damage to be considered by the jury, provided they found the facts to be as above stated. The assignments of error, excepting one to be considered later, all relate to this ruling. The company’s contention is, first, that it is exempt from liability for injury resulting from the erection of the bridge, inasmuch as the structure was erected pursuant to a franchise from the commonwealth over a stream the bed of which was in the commonwealth exclusively; and, second, that if liable at all, it can only be for such consequences as are shown to have resulted from so much of the bridge structure as rests upon the plaintiff’s land. The state’s participation in the matter does not affect the case in the least. The franchise granted the defendant company carried with it a right to use the bed of the stream for the necessary piers; but it did not and could not exempt the party exercising the franchise from liability for injury to property not belonging to the state but to private parties, occasioned by the bridge. The cases are numerous in which this court has held that the rights of the railroad company to build a bridge across a stream, includes the right to place necessary piers on its bank and in its bed; and that for the proper exercise of this right there is no liability; the most recent of these cases being Braine v. Northern Cent. Ry. Co., 218 Pa. 43, in which the earlier cases are cited. But this exemption extends no further than to relieve from liability for such interference with ordinary and natural conditions in and upon the stream, as affects the rights of the public in the stream, or the rights of riparian owners to access to the stream. An examination of the cases referred to will show that in every one of them the subject of the injury complained of was within the proper limits of the stream. In several the injury was to boats or barges; in others the matter complained of was interference with the right of access, or with a privilege exercised in connection with the stream under grant. Any such doctrine as here contended for would violate constitutional safeguards with respect to the ownership of private property. When land is flooded by the erection of a bridge over a navigable stream and its value thereby impaired, it is in effect a taking of the land itself, and for any taking of land for public use, compensation is the condition. The flooding of land continuously, or even intermittently, caused by the construction of a dam or of other erections for public use, is a taking which requires compensation: Pumpelly v. Green Bay Co., 80 U. S. 166. The right to flood the land of any one by the erection of piers in the bed of a stream, can only be adversely acquired as land itself is acquired, by giving or securing compensation to the party who would be injured thereby. Were this not so, a company having acquired a right from the state to erect and maintain a bridge over the stream — a right which necessarily carries with it the right to determine the character, number and location of the piers: Braine v. Northern Cent. Ry. Co., 218 Pa. 43 — might so obstruct the flow of the water with its bridge as to overflow a riparian owner’s land, not occasionally but constantly, in a way destructive of its value, and leave the owner remediless. That is not the law. What we have said is in answer to the second contention of the defendant as well. If none of the piers were on the condemned land, but all on the bed of the river, the defendant would nevertheless be liable for whatever injury the bridge as a structure worked to the plaintiff in the way of flooding his land. The evidence with respect to this was properly admitted.

The other assignment is better supported. The witness, Robert Nesbitt, called on behalf of the plaintiff to testify to the market value- of the plaintiff’s farm, was clearly incompetent, and his testimony should have been excluded. Not only did he repeatedly admit in his preliminary examination that he had no familiarity with the market value of land in the neighborhood, but when testifying in chief he as repeatedly said that the estimate he gave was not a market value, but a value based on what he thought the farm would produce. When asked how he arrived at the market value, his reply was that he-did not believe it right to consider market value; that he had his own notion as to what this land was worth, and was not governed by outside sales; that he estimated it from its earnings capacity, and that he could not confine himself in his estimate to market value. Thus the one standard by which the law measures damages in cases of this kind was distinctly repudiated by the witness. It was error to allow him to testify, and having testified not to a market value but to a value based on mere productiveness, his testimony should have been withdrawn from the jury. This assignment of error is sustained and judgment is reversed with a venire facias de novo.