Appeal, No. 308 | Pa. | Jul 11, 1894
Opinion by
The statement in the charge that “ the strip of land is taken absolutely from Mr. Larkin ; the title to it is taken from him and vested in the city of Scranton by virtue of this proceeding, for all time,” was probably inadvertent, but it was unfor
The charge was also uufortunate in the expression in reference to the stone building, that the jury “ have also the right to consider the condition of the property in the rear of that building in determining what it would require to place it in such convenient position as it was before, and that consideration may be entirely independent of the question of the value of the property which the city admits it has taken for public purposes.” The last clause of this sentence might easily lead the jury to suppose that they should assess the cost of replacing the building as a separate and independent element of the damages. It was an item for consideration, but only as a part of and in clear and complete subordination to the general criterion, the difference in market value between the plaintiff’s whole property before the taking, and what remained to him after it. The distinction, and the proper use of such incidental evidence, are fully explained in Dawson v. Pittsburg, 159 Pa. 317" court="Pa." date_filed="1893-12-30" href="https://app.midpage.ai/document/dawson-v-pittsburgh-6241966?utm_source=webapp" opinion_id="6241966">159 Pa. 317.
The objection to the jurisdiction raised in the third assignment of error need not be considered. It comes too íate. The city had notice of the appointment of the viewers, of their report, and of the plaintiff’s appeal, and when the issue was framed on the appeal, the city pleaded to it without objection. As in Wilson v. Scranton, 141 Pa. 621" court="Pa." date_filed="1891-04-20" href="https://app.midpage.ai/document/wilson-v-city-of-scranton-6240442?utm_source=webapp" opinion_id="6240442">141 Pa. 621, and Ogden v. Philadelphia, 143 Pa. 430" court="Pa." date_filed="1891-10-05" href="https://app.midpage.ai/document/ogden-v-city-of-philadelphia-6240482?utm_source=webapp" opinion_id="6240482">143 Pa. 430, the subject-matter was one within the general jurisdiction of the court, and the parties by their conduct had waived the right to object that they were not properly before it.
Judgment reversed and venire de novo awarded.