44 Pa. Commw. 445 | Pa. Commw. Ct. | 1979
Opinion by
This is an appeal from an order of the Court of Common Pleas of Bradford County denying Charles J. and Janice M. Dannemanns’ (Plaintiffs) motions for judgment N.Q.V. and for a new trial.
On June 10, 1971, the Commonwealth of Pennsylvania, Department of Transportation (Commonwealth) filed a Declaration of Taking, .appropriating 42.849 of Plaintiffs ’ original 320 acres and temporarily utilizing 0.1722 acres in the course of construction of Legislative Route 1088, Section A10, known as the Towanda Bypass. The taking severed the original tract leaving two unconnected parcels. At the time of taking, the property was being utilized as a residence with some farming. Included within the take was the main barn of the farm and approximately 22 acres of gravel land.
The Board of Viewers awarded damages in the amount of $81,500. Both parties appealed. The case was tried on June 15, 1977 and á jury rendered a verdict of $61,000.
In reviewing the action by a trial court in dismissing motions for a new trial and judgment N.O.V. in an eminent domain case, we must consider whether the lower court committed an abuse of discretion of error
Plaintiffs argue that the lower court erred (1) in refusing to allow cross or direct examination of a valuation witness for the purpose of placing values on individual elements of the taking, (2) in refusing Plaintiffs’ request that the jury be charged that it must place itself in the position of a potential purchaser of the tract in determining the value thereof, (3) refusing Plaintiffs ’ point for binding instructions as stated by Plaintiffs and (4) in excluding evidence as to the amount of gravel taken from Plaintiffs’ land which was used in the highway construction and the effect that the presence of gravel on Plaintiffs’ land had upon construction bids for the highway. Finally, Plaintiffs- contend that the Commonwealth was guilty of fraud in , employing knowledge of the gravel to. secure a low construction bid, but.'witholding that same knowledge from its appraisers.
Plaintiffs rely upon this Court’s abrogation of the unit rule as found in North Side Deposit Bank v. Urban Redevelopment Authority, 1 Pa. Commonwealth Ct. 274, 274 A.2d 215. (1971), to substantiate their argument that an appraiser may be asked to testify as to the value assigned the separate elements he considered in arriving at his estimate of the market value of the subject tract before and after taking. One of Plaintiffs’ valuation witnesses was asked what elements he considered in fixing the before and after value of the subject property. His.response was that he divided the property into'two portions in arriving at the “before value” and that one of these was a five acre parcel (including.certain improvements) upon which the witness
We conclude that the trial court correctly excluded the dollar value of the two parcels which Plaintiffs’ expert witness considered in arriving at his before and after market values. The witness testified initially that arriving at his estimate of damages he used the comparable sales or market data approach. Although the witness could certainly consider in his own mind the value of the subject property as two separate parcels, he could not testify as to the actual dollar value he assigned to each of those tracts. Under our holding in North Side Deposit Bank, such testimony would be purely speculative.
Plaintiffs requested the trial judge to charge the jury that they must place themselves in the position of
Plaintiffs also requested the trial judge to charge the jury that the verdict must be for the Plaintiffs “in the amount established by their appraisals.” WTiile the requested language appears to be so clearly erroneous as to warrant no further discussion, the Plaintiffs’ contention is that since the Commonwealth’s appraisers admittedly had not taken into consideration the gravel deposits on the Plaintiffs’ land, their testimony as to fair market value thereof was wholly incompetent. While there can be no doubt that mineral deposits are an element of value which must be considered in determining the fair market value of Plaintiffs ’ land, Werner v. Department of Highways, supra, the fact that a particular expert witness failed to consider that element does not render that testimony incompetent per se, but depending upon the circumstances, most often goes to the weight to be accorded that testimony by the jury. Here both the Commonwealth’s appraisers admitted that they were not aware of the gravel deposits on Plaintiffs’ land. Both of those appraisers testified that before they would concede that the presence of such deposits would change their opinion that the highest and best use of Plaintiffs’ property would be for residential development, they would have to know much more about the extent
Next, Plaintiffs argue that the trial judge erred when he excluded testimony as to the amount of gravel' actually removed from the subject property by the contractor for the right of way, and testimony that knowledge of the existence of the gravel deposits was the leading factor which induced that contractor to submit the lowest bid for the construction of the highway. Plaintiffs contend that the amount of gravel actually used would show the land’s potential for gravel deposits as well as increase its value in the minds of the jurors. Plaintiffs’argument misses the mark. The trial judge correctly admitted Plaintiffs’ testimony concerning the estimated amount of gravel located within the right of way. This he was required to do under Werner v. Department of Highways, supra. This is an element of value which the jury was entitled
With respect to Plaintiffs ’ final argument that the Commonwealth was guilty of fraud because it allegedly withheld the evidence of gravel deposits from its expert appraisers, we note that this issue was not raised in the court below and therefore we will not consider it here. Brunswick Corp. v. Key Enterprises, Inc., 431 Pa. 15, 244 A.2d 658 (1968) and Commonwealth v. Robinson, 7 Pa. Commonwealth Ct. 521, 300 A.2d 913 (1973). Moreover, the record discloses that the Plaintiffs did not inform the Commonwealth’s appraisers of these deposits in the extensive interviews both appraisers conducted with them. Edwards v. Department of Environmental Resources, 14 Pa. Commonwealth Ct. 371, 322 A.2d 138 (1974).
Order affirmed.
Order
And Now, this 26th day of July, 1979, the order of the Court of Common Pleas of Bradford County dated January 23,1978 is hereby affirmed.