Aswell v. City of Scranton

175 Pa. 173 | Pa. | 1896

Opinion by

Mr. Justice Williams,

The several assignments of error in this case are merely different methods of presenting the same general question. It is raised upon the following facts. The plaintiff is the owner of a lot at the intersection of Tenth and Oxford streets in the city of Scranton. It was at the bottom of a deep depression in the surface and was reached at some inconvenience and danger on account of the steepness of the descent, and the irregularity of surface of the streets by which it was reached. There were two dwellings and a stable upon the lot, and the plaintiff herself resided on it. In 1891 an ordinance was passed fixing a uniform grade for Tenth street between Luzerne and Washington streets. Oxford street was about midway between these points. When the street was put upon the grade provided for in the ordinance, its surface was raised some eight or ten feet at the crossing of Oxford street, and this made it desirable for the plaintiff to raise her house and to fill some portion of her lot. Thjs proceeding was entered upon to ascertain what amount, if any, should be paid by the city to the plaintiff as damages suffered by reason of the change of the grade of Tenth street. The learned judge before whom the trial was had instructed the jury that the measure of the plaintiff’s damages was the difference between the market or selling value of her lot before the improvement was made and its value as affected by the improvement. In ascertaining this difference, he told them that they were to consider any direct benefit or advantage conferred on the property by the grading of the street; and any disadvantage or injury inflicted upon it by the alteration of the grade. This was entirely correct.

The question now raised is over his application of these rules to the facts of this case. To guide the jury in the estimation of the value of the property, as affected by the improvement, he said to them, “ If this testimony however on the part of the city is based upon the general appreciation of property in that neighborhood, and not upon a special appreciation of the property of Mrs. Aswell, the jury cannot take that into consideration because she is not to be affected by the general appreciation of property in that neighborhood, but only by the appreciation of the value of her property.” In a point pressed by the plaintiff he was also asked to instruct the jury that they should not take into account the general increase in value of property in the neighborhood consequent on the grading of the street, as the plaintiff was fairly entitled to that along with the other property owners and the general public whose property was benefited by the improvement. This point he affirmed, adding, “ As we have already instructed you' in our general charge, it must be the particular benefit to this property.” Now this was an improvement extending only over two squares, and intended by filling and grading to make a practicable roadway by which this part of Tenth street could be traversed and property along it be reached with ease and safety. If the improvement of this short piece of street had any effect by way of increasing the value of real estate in that general region of the city, it is not apparent upon an examination of the testimony. It did increase the value of such pieces of projierty along it as were 'made easily accessible by means of the improved street; and such improved accessibility was not a general benefit to be excluded, but a special benefit to be included in fixing upon the proper market or selling price of each piece of property so ■ affected. The mere fact that a line of railroad or a street has been projected across a region of country may improve the general value of land in the region. That is a general benefit in which the entire public may share, but the lots that are made available for building purposes by the street when actually opened have conferred on each a benefit that is peculiar and although it may be shared by several owners, is not shared in by the public. In Setzler v. The Railroad Company, 112 Pa. 56, the proposition is stated in these words, “ The question in each case is, whether or not the special facilities afforded by the improvement have advanced the market value of the property beyond the mere general appreciation of property in the neighborhood.” Substantially the same thing was said in Long v. Harrisburg, etc. R. Co., 126 Pa. 148. In Lawson v. Pittsburg, 159 Pa. 317, the general increase in value from the development of a neighborhood by improvements is clearly distinguished from the real and special benefits to particular owners. The former are to be excluded from the calculation of benefits. The latter are to be included. The effect of the charge was to open the way for the jury to reach a conclusion that we have uniformly said they must not adopt, viz: that the advantage derived from an improvement to justify the jury in considering it must be something unlike and above the advantages derived by any other person. The last case upon this subject, as I now recollect, is Mehaffey v. The Beech Creek Railroad, 16B Pa. 158, in which our Brother Fell, delivering the opinion of the court, said, “ The plaintiff’s property was not the only property taken, and presumably not the only property which received special advantages. Against the demand of each claimant it was for the jury to consider the advantages special to his property.” So it may be well said as to this improvement on Tenth street. The plaintiff’s was not the only property af fected. Each piece of property along the two squares over which the grade was established, and the street made, was probably made more accessible and more valuable. The amount of benefit conferred depended on the extent to which access to the property had been improved, but “ against the demand of each claimant ” for damages were to be put the advantages special to his property in improved accessibility or otherwise. If every property along the street was made more accessible, then every property along the street was specially benefited, and the amount of that benefit should be set off against the damages, if any, inflicted by the improvement as made. It is the actual loss suffered for which the lot owner should be compensated. That loss may be measured with exact justice by the depreciation in value of his property resulting from the improvement complained of. If his property is injured that others may be benefited, his loss should be made good; but if the grading or other improvement increases the value of his property as much as or more than it may cost him to repair, or to readjust himself to the changed state of things, he is not a loser and ought not to recover.

The judgment is reversed and a venire facias de novo awarded.