15 A.2d 363 | Pa. | 1940
This appeal is from the refusal of a new trial in a condemnation case on the grounds of improper exclusion of evidence and prejudicial error of law in the trial court's oral charge to the jury.
By ordinance No. 141 of 1932, the city of Pittsburgh, appellant, authorized and directed a change of grade and widening of Chartiers Avenue from Bucyrus Street to Corliss Street, and by another ordinance, No. 145 of 1932, established the width and position of the sidewalks and the roadway and reestablished the grade. Appellees are owners of a property abutting on the northerly side of Chartiers Avenue at a point included within the portion thus authorized and directed to be improved, consisting of a lot of ground with a frontage of 30 feet *537 and a depth, prior to the improvement, of 110 feet, having erected thereon a two-story frame dwelling house. Property taken and appropriated for the purposes of the improvement included a fifteen foot strip extending the entire width of appellees' lot and running from near their front porch line to the street, at a slope of approximately thirty degrees.
Viewers' proceedings resulted in an award in favor of appellees in the amount of $1300. On appeal from this award to the court below, appellees obtained a verdict in the increased amount of $2,800. The city's motion for a new trial having been refused and judgment having been directed to be entered in accordance with the verdict, it appeals.
At the trial, on the theory that as the Viewers' plan indicated that the city proposed to erect a retaining wall along the northerly side of Chartiers Avenue, as part of the improvement, they were entitled to have damages assessed on the basis that such a wall would be erected and on the basis of the most injurious mode of construction possible, appellees introduced expert testimony tending to show that in all probability the proposed wall would be erected without any provision being made in the construction thereof for ingress to and egress from their property. Thereupon, after appellees had rested, the city offered an ordinance of 1939, duly enacted into law before the proceeding in the court below came on to trial, providing, inter alia, for the paving, curbing, and otherwise improving Chartiers Avenue from Bucyrus Street to Corliss Street and referring to plans, which were also offered, containing detailed drawings for the continuation of a ten foot wall already in course of construction and including drawings of proposed steps immediately adjacent to the Bachner property. The purpose of the offer was stated to be "to contradict and explain testimony of plaintiffs' witnesses in chief when they based their opinion of damages to the property in question on an assumed ten foot wall passing *538 directly in front of the Bachner property and cutting off access to it on Chartiers Avenue." It is the exclusion of this evidence by the court below and the court's permitting the jury to consider appellees' evidence that access to the property would be cut off by the wall which the city proposed to erect, in arriving at the amount of damages to be awarded, of which the city complains.
The record is devoid of any evidence that the erection of a wall of such construction as to cut off access to appellees' property was a necessary incident of the improvement, and appellees do not so contend. A photograph exhibited at the oral argument showing that in the construction of the proposed wall, completed since the proceedings in the court below, ample provision has been made therein for access to the property, demonstrates just the opposite. It is appellees' position, in effect sustained by the court below, that the limits of the appropriation as defined in the original ordinances and plan included or authorized the taking of their right of access, and that the city is estopped from subsequently altering or modifying the appropriation as so described.
In Wilson v. Scranton City,
In view of these decisions, it may be taken to be the settled rule, corollary to the general principle that private property may be taken for public purposes only in such an amount(Penna. Mut. Life Ins. Co. v. Phila.,
The opinion of the court below refusing the city's motion for new trial states: "It appeared to the trial judge that as this ordinance was not an integral part of the ordinance under which the original condemnation proceedings took place, and as there was no positive assurance that the wall would be built and steps provided so that the plaintiffs could easily enter and leave their property, it might be highly prejudicial to the plaintiffs to have their rights adjudicated on an ordinance which could be repealed, and their damages assessed on the basis of steps which might never be built. Thus we excluded the offer of the ordinance because it could well impress the jury as a fait accompli with all the improvements referred to therein, whereas in fact they were still within the stage of repeal." This objection is fully answered by the opinions inWilson v. Scranton City and Phila. Felt Co.'s Appeal, cited supra; these decisions make it clear that, in the event of an attempt on the part of the condemnor to do anything in excess of its rights actually acquired and paid for, the law affords *541 the property owner an adequate and appropriate remedy.
The judgment is reversed and a venire facias de novo awarded.