88 Pa. Super. 439 | Pa. Super. Ct. | 1926
Argued April 19, 1926. Since 1898 plaintiff has owned a house and lot fronting on Eastbrook Road, a street in the City of New Castle. As originally laid out the road was thirty-three feet wide. In 1909 the City Councils passed an ordinance fixing its width at forty feet, of which twenty feet should be on each side of a described center line, and establishing a grade, which in front of plaintiff's house was several feet higher than the original grade. Nothing was done towards the actual widening and grading of the road until June 6, 1921, when the City Council passed an ordinance providing for the opening and widening of said road between Croton Avenue and City Line (North Boundary) according to the width and location as fixed and established by an ordinance, approved January 18, 1909; and for the grading of said street or road, between said points; and for the payment of the damages, costs and expenses thereof. Pursuant thereto the street was widened and graded, resulting in the taking of some of the plaintiff's land and damage to her property.
On petition of the City Solicitor, based upon the Ordinance of 1921, viewers were appointed in January, 1922, to assess the damages, costs and expenses of said improvement upon the properties benefited, in the manner provided by the Act of May 16, 1891, P.L. 75. *442 Under the provisions of section 5 of said act the plaintiff's claim for damages sustained in the widening and grading of said street was presented to the viewers and not being satisfied with their award she appealed from said report to the Court of Common Pleas, where an issue was awarded and the case tried before a jury which rendered a verdict in her favor. The City appeals to this court from the judgment entered on that verdict.
The learned City Solicitor presents three grounds for reversing the judgment.
(1) He contends that under the Acts of May 16, 1891, P.L. 75, and May 26, 1891, P.L. 117, the damages should have been determined as of the date of the ordinance of January 18, 1909, which established the width and grade of the street, instead of the time when the improvement was actually made. Two things prevent our adopting this view. In the first place the case was tried in the court below on the theory that the correct date for ascertaining the plaintiff's damage — to be determined by the difference between the value of her property before and after the improvement — was when the street was actually widened and graded; and all of the witnesses on both sides testified on that basis. The City's third point was, "You must first determine in this case what the property would have sold for immediately before the street was graded and widened. You will then determine what it would have sold for immediately after the street was graded and widened; the difference in these amounts is the measure of damages to be allowed the plaintiff and the only one." This was affirmed, as was also plaintiff's seventh point, which was substantially the same, except that the correct term, "market value," was used instead of defendant's equivalent "what the property would have sold for." Appellant's after-thought on the subject of damages ought not to move this court to *443
sustain an assignment which in effect complains of the court's affirmation of its own point. But, in the second place, we are satisfied that the measure of damages adopted in the court below was correct. The appellant relies on the language of section 4 of the Act of May 16, 1891, supra, and on three decisions of the Supreme Court, Witman v. Reading,
Section 4 of the Act of 1891, supra, provides that viewers may be appointed "before or at any time after the entry, taking, appropriation or injury of any property or materials for constructing said improvement"; but it did not thereby change the long-established measure of damages in eminent domain cases nor make anything an injury entitling an owner to compensation which was not such under the then existing law: Thirteenth Street,
In Shields v. Pittsburgh, supra, the City of Pittsburgh by ordinance of April 2, 1896 — enacted under the provisions of the Act of June 26, 1895, P.L. 349 — appropriated two lots belonging to Hogan, for park purposes. Before the lots were actually entered upon or the damages assessed, Hogan sold them to Shields, who paid him $2,500 cash and executed a mortgage for $2,500. The damages were assessed subsequently at $2,600, which were awarded to Shields. Hogan asked that the damages thus awarded be paid to him as the holder of the mortgage; but the Supreme Court, while recognizing that the appropriation constructively dated back to the date of the ordinance, — which constituted an actual appropriation — awarded the fund to Shields, as part compensation for Hogan's breach of the general warranty in his deed.
In Chelten Trust Co. v. Blankenburg, supra, the City of Philadelphia by ordinance approved July 27, 1911, selected and appropriated for park purposes land belonging to the plaintiff. The ordinance directed the mayor to enter security for the payment of damages that might be awarded by reason of such taking and thereupon possession of the land should be taken for public use; and the city solicitor was directed to begin and conduct the proceedings in the court of quarter *446
sessions for the assessment of damages for the said taking. The plaintiff asked for a writ of mandamus to compel the mayor to enter security and the city solicitor to institute proceedings for the assessment of the damages suffered by such taking and was sustained by the Supreme Court, which held that the plaintiff's land was practically taken when the ordinance appropriating it for park purposes was passed, and that when actually turned into a park the date of taking would relate back to the date of the ordinance. But the ordinances in all three of those cases were definite appropriations for park purposes, not the ordinary location of a street or establishing of its width; and if the cases have any application to this proceeding they refer to the ordinance of June 6, 1921, — which was practically coincident with the beginning of the work — not that of January 18, 1909. As to ordinances which merely locate a street or fix its width and grade, the rule enunciated in District of the City of Pittsburgh, 2 W. S. 320, and continued without interruption in Volkmar Street,
(2) Appellant further contends that under the Act of May 23, 1891, P.L. 109 (No. 88), plaintiff's claim for damages caused by the taking of her land in the widening of Eastbrook Road is barred by the limitation fixed in said Act. It provides, "That petitions for the assessment of damages for the opening or widening of any street, road or highway, when the damages are not assessed by the view opening the road, may be filed in the court of quarter sessions within the period of six years from the confirmation of a report or the entry of a decree opening the said street, road or highway or within six years from the date of notice of the intended opening of the same under an ordinance duly passed, but not thereafter. All claims shall be forever barred after the expiration of the said period of six years." And that as the Act of May 26, 1891, P.L. 117 provides that the award of damages for the opening or widening of any street or highway in any city shall include all damages due to the grade at which the street or highway is to be opened, the damages due to change of grade are likewise barred. This is an ingenious proposition, but it falls with the contention just considered; for as we have shown, no petition for the assessment of damages in this case could have been presented until after the ordinance of June 6, 1921 was passed, which was the first appropriation of plaintiff's land in the widening of Eastbrook Road. Hence it is within the six year limitation. There was no taking of plaintiff's land by the ordinance of January 18, 1909; its only effect, as respects this plaintiff, was to deny her damages for any structure that might thereafter be placed on her lot within the lines *448
of the located street: Forbes Street,
(3) Appellant's third contention is that the photograph of plaintiff's house taken in 1918 ought not to have been admitted in evidence, because there was no proof that it was a correct likeness of the premises at the time the work on the ground was begun. Defendant's objection to the photograph at the trial was not based on that ground, but was limited to its "failure to show the different objects on the picture from the same perspective, [thus giving] a wrong idea of distance and heights." Appellant's own witness, Smith, testified that the picture showed the house and lot as he recollected it before the street was graded, which was no doubt understood as referring to the time just prior to the change on the ground. Had appellant interposed the objection at the trial which it now presents here, the testimony could no doubt have been easily supplied. In any event, when specific objections are made to the admission of evidence, all other objections are waived: Lovett's Executors v. Mathews,
The assignments of error are overruled and the judgment is affirmed. *449