Birch v. Lake Roland Elevated Railway Co.

Roberts, J., delivered the opinion of the Court. This case, in almost every material respect, is identical with the decision of this Court in Webster’s case, reported in 81 Md. 529 . There was a judgment in favor of the plaintiff below (appellant here) for nominal damages, and from that judgment this appeal is taken. There are two exceptions contained in the record, the first of which relates to ³⁷⁰ the admissibility of the proof offered by the plaintiff, the other, to the rejection by the Court of the plaintiff’s five prayers, and to the granting of the plaintiff’s first and third prayers, with certain modifications made by the Court, and to the granting of the defendant’s (now appellee’s) first, second and fourth prayers.

The essential facts are, that the plaintiff is now and has been for a number of years past, the owner óf a leasehold estate, for the term of ninety-nine years renewable forever, in a lot of ground and premises in the city of Baltimore, which is subject to an annual ground-rent of three hundred dollars. The lot is improved by a building, which has been used as a livery stable for a number of years, and is not in its existing condition adapted to any other purpose. The plaintiff has been accustomed to derive a large yearly rental from said premises as a livery stable. The defendant has constructed, maintains and operates an elevated and surface railroad, which passes in front of the plaintiff’s lot.

The elevated position of the railroad is not directly in front of the plaintiff’s premises, but begins about twelve feet distant from the northern boundary of the lot. The railroad has been in operation since the month of May, eighteen hundred and ninety-three. The plaintiff offered to prove by Webster who was the appellee in 81 Md. 529 , that shortly after the cars began to run over the defendant’s road, he and Webster, who was his then tenant, had modified the terms of the lease between them by reducing the rent from $1,200 a year, to $900 a year; that this reduction was made in order to retain Webster as his tenant, and in view of what they both believed would be the injurious effect of the construction and use of defendant’s road upon the rental value of the property as a livery stable. This offer constitutes the plaintiff's first exception.

We think the Court below was clearly in error in refusing to permit ■ the testimony to be given. ■ It was after all and at most nothing but an expression of the opinion of Webster, and of the plaintiff, as to the effect upon the plaintiff’s lease, produced by the construction of the defendant’s road. We ³⁷¹ do not perceive where in any respect it violated any rule of evidence, and the fact that it may have been somewhat insignificant in its effect, its weight was for the jury, and not for the Court. Coming then to the consideration of the various prayers which constitute the second exception, we think there are but two propositions in the determination of this appeal now necessary to be decided. Separate consideration of the prayers contained in this exception will not therefore be requisite.

The first proposition, which we think