364 Pa. 408 | Pa. | 1950
Opinion by
This appeal is by the defendant, Bethlehem Municipal Water Authority, from a judgment in eminent domain proceedings for the condemnation of part of a large tract of land, owned by plaintiffs, in Towamensing Township, Carbon County, for the construction of defendant’s Wild Creek Dam. On June 8, 1939, appellant adopted a resolution appropriating plaintiff’s land “for the purpose of erecting and constructing [a] dam, lay pipe lines, and constructing and erecting other buildings for the operation of a water system . . .” and filed a condemnation bond which was approved by the court.
On April 15, 1947, following an abortive appeal to this Court, and pursuant to a petition for viewers, the court again appointed a jury of view. This jury reported on December 16, 1947, and awarded $26,500. Both parties appealed from this award. After issue framed, the case was tried in October, 1948, resulting in a verdict of $42,500 in favor of plaintiffs. The Authority now appeals from judgment on the verdict and contends that (1) the statute of limitations prevents recovery; (2) there was error in rulings during the examination of expert witnesses. No objection is made to the charge of the court except to the refusal to charge as requested in appellant’s 25th point for charge, a matter not now requiring discussion.
1. The defense of the statute of limitations is based on failure of the first viewers to report in the term of court during which they were ordered to report or the omission to obtain an order extending the time for the report. When that report was set aside, six years had elapsed since the Authority entered on the land; because of the expiration of that period, appellant now contends that the petition for the viewers appointed on April 15, 1947, was filed too late.
Section 2820 of The Third Class City Law (53 PS 12198-2820) provides, “The viewers provided for in the preceding section may be appointed before or at any time within six years after the entry, taking, appropriation or injury, or the passage of an ordinance providing for the same, or the completion of any public improvement.” This second petition for viewers was filed within six years of the completion of the public improvement and was therefore in time, making it unnecessary now to discuss the effect of the order sustaining the exceptions to the first report of the board of viewers.
2. Appellant contends that it was harmfully prejudiced by the court’s refusal to strike out the evidence of three expert witnesses called by the plaintiffs, William L. Lance, Frank R. Diehl and Robert Getz. The court justified its action by noting that the motions to strike out did not distinguish the evidence said to be objectionable from the evidence which was clearly admissible. This was of course an adequate reason for refusing to grant appellant’s motion: Miller v. Windsor Water Co., 148 Pa. 429, 440, 23 A. 1132 (1892); Wadsworth v. Manufacturer’s Water Co., 256 Pa. 106, 116, 100 A. 577 (1917); Gerhart v. East Coast Coach Co., 310 Pa. 535, 538, 166 A. 564 (1933). During the exami
“(a) To state, in detail and costs, all the elements of benefit or damage which they have taken into consideration in arriving at their opinion;
“(b) In arriving at their opinion as to the market value immediately after the exercise of the right of eminent domain, to add to their opinion of the market value before such exercise, the cost or value of all the elements of benefit or advantage, and to deduct therefrom all disadvantage or damage in order to arrive at the market value after such exercise of the right of eminent domain and as affected thereby; . . .”
Both the plaintiffs testified and, in addition, they called their son. The wife and the son testified generally to physical conditions but put no value on the property before or after. We are not impressed by appellant’s criticism of their testimony. They were competent to describe the property on which they lived and if, as appellant suggests, their evidence stressed a sentimental side, it was a mere incident in the transaction.
The husband plaintiff fixed the value of the property before the taking at $55,000 and the value of what remained afterward at $2,000. He was a farmer who lived on the property and worked it. Appellant objects that he was incompetent to give an opinion. It is well settled in this Commonwealth that an owner of property, taken in the exercise of the right of eminent domain, may
The expert witness, Lance, lived about 25 miles from the property. He was an engineer with many years experience concerning water companies and water storage. He testified that he was generally familiar with plaintiff’s land since as early as 1933. While he had neither bought nor sold any land in the county, he had informed himself of values by inquiry of individuals and of areas that had been sold, by examination of records. He testified that he made an examination of the watershed in the vicinity of the Wild Creek
The witness, Getz, was not an engineer with Lance’s experience. He was 66 years old and had lived in Carbon County all his life in a township adjoining that in which plaintiffs’ land was located and about 6 miles from it. He owned about 3700 acres of land in adjoining townships. He gave his occupation as lumbering and farming. He had sold real estate and had acted as an appraiser of the value of real estate. He testified that he was familiar with the general selling prices of land in Towamensing Township (where plaintiffs’ land was situated); that he knew plaintiffs’ property and the improvements on it; that he was familiar with the water situation in that watershed. He stated that in his opinion the market value of the property before the appropriation was $45,000 and afterward $3,000. In considering his evidence we note the court’s reference to this witness in the opinion refusing the new trial. In part, the court said, “While the Defendant seeks a new trial on the refusal of the Court to strike out the testimony of Robert Getz, the Court is of the opinion that Mr. Getz was one of the best qualified witnesses presented in this case to testify as to values. Mr. Getz is a farmer residing in the vicinity of the Plaintiff’s property. He is a substantial citizen of the highest integrity and standing in this County whose reputation for veracity and sound judgment is widely known throughout the County, and is a person whom prospective purchasers would probably consult concerning values of premises in Lower Towamensing Township. He was aware of the adaptability of the premises for recreational purposes, farming purposes, poultry raising, turkey raising, the development of water power and for the raising of asparagus.” It would of course have been error to grant appellant’s motion to strike out the evidence of this witness.
The defendant called a number of witnesses; our reading of their evidence gives the impression that they were not very familiar with the issues concerning which they were testifying. One of them, Mr. Strohl, who was employed only three days before the trial, testified that he had not familiarized himself with the property; that the market value before the taking was “from $11,000 to $12,000 and afterwards $7,000.” Mr. Ziegenfus gave the market value before as $6,500 and afterward as $3,500. Mr. Smith gave the market value before as $13,050 and afterward as $6,000.
The appellant repeats in this Court the contention made below that the verdict was excessive. In considering this point, the trial judge thought that interest from the date of the taking, June, 1939, on the amount awarded by the jury of view, $26,500, added to that sum, would about make the verdict. While the verdict seems high if considered only with the evidence of the experts produced by the defendant, it does not seem so clearly excessive when the evidence given by defendant’s witnesses and their qualifications are considered alongside the evidence and qualifications of plaintiff’s witnesses, who exhibited more comprehensive knowledge of the property and its relations to the surrounding properties in the watershed. We are not prepared to say the trial judge erred in not reducing the verdict.
Judgment affirmed.'
This procedure is authorized by the Act of May 2, 1945, P. L. 382, section 11, as amended by Act of June 12, 1947, sec. 1, P. L. 571, 53 PS 2900z-12.
“Section 2828. . . . the viewers shall report to the court, within three months from the date of their appointment, unless the time for so doing shall be extended by the court, showing the damages and benefits allowed and assessed in each case, and file therewith a plan showing the improvement, the properties taken, injured or destroyed, and properties benefited.”
Wild Creek flowed through plaintiffs’ farm.