80 Pa. Super. 590 | Pa. Super. Ct. | 1923
Opinion bt
Appellant presented her petition to the Court of Common Pleas of Lackawanna County asking for the appointment of viewers to determine the damages which she had sustained by reason of the grading by the Borough of Dunmore of Quincy Avenue and Grove Street, where they abutted on her property. Being dissatisfied with the amount awarded her by the viewers she appealed to the court of common pleas and is now appealing from the judgment entered upon the verdict rendered, in that issue.
The engineer, Murphy, had not been called as an expert on land values and had not so qualified. He was familiar with the physical changes which had been made by the borough and was competent to testify as to the effect those changes had upon the plaintiff’s property from a physical standpoint, but his volunteered statement that the change of grade had “improved everything a hundred per cent all through the neighborhood” was improper in the circumstances and should have been stricken out, in accordance with the plaintiff’s motion. The judge, in his charge, referred to this statement as though competent evidence;, and while he adverted to the fact that the witness had subsequently, to some extent, modified his first statement, we are not satisfied that the plaintiff was not harmed thereby. The third assignment is sustained.
We must also sustain the fourth and fifth assignments. The fact that the borough had in one ordinance provided for the laying of sidewalks and gutters on four other streets, besides Quincy Avenue and Grove Street, did not deprive the plaintiff of her right to any general appreciation which might attach to her property, in common with the neighborhood generally, from any general scheme of improvement carried out upon streets on which her property did not abut. This proceeding was limited to an inquiry info the damages, if any, which the plaintiff had sustained by reason of a change of grade of Quincy Avenue and Grove Street. This change, though not specifically provided for in the ordinance, was rendered necessary in order to lay the sidewalks and gutters ordained for Quincy Avenue and Grove Street, along plaintiff’s property, so as to take care of the water falling and flowing on the plaintiff’s side of those
The error complained of in the first assignment was rendered harmless by the subsequent admission of the testimony excluded. For the purpose of supporting her evidence as to the value of the property before the change of grade, it was competent for the plaintiff to testify as to its condition, the uses for which it was adapted, or to which it was put, and the rental received from the occupants ; and also, the effect of the change of grade upon such .uses and occupancy as bearing on the value of the property after the change of grade; not, of course, as separate items of damage, but as having relation to the evidence of the value of the property before and after the improvement.
The judgment is reversed and a venire facias de novo is awarded.