213 Pa. 383 | Pa. | 1906
Opinion by
On February 25, 1903, the Pittsburg and Lake Erie Rail
On appeal from the award of the viewers, the question of the amount of compensation to which the appellee was entitled was submitted to a jury, and the four errors specified are alleged to have been committed on the trial before that body. The case was called on Monday, October 20,1904, and on that and the following day twenty-three of the twenty-five witnesses called by the plaintiff were examined. Each one called as to the amount of damages sustained was examined, without objection by the defendant, as to the value of the land, which, in its petitions for the approval of its bond and the appointment of viewers, it said it would take, amounting to 6.757 acres,
The first assignment relates to the refusal of the court to allow the amendment asked for by the appellant.. It is urged that it should have been allowed, because, as Mrs. McGunneglo admittedly did not own the land lying beyond low water towards the river, the railroad company was not taking it from her, and her right to compensation was limited to her ownership, extending only to pool full or low water. The reason for refusing the amendment is not given by the learned trial judge, and we need not conjecture what it may have been, for the refusal could have done no possible harm to the defendant, in view of the clear, distinct and correct instructions given to the jury, that they could allow compensation to the plaintiff only for the land which she owned, and which did not extend beyond low-water mark. If the amendment had been allowed, the defendant could not have asked for more from the court than was said by the learned trial judge in support of its theory as to what land it could take. We might allow the amendment here, and, if so, there would be nothing in the record, so far as the quantity of land taken is concerned, of which the appellant could make any complaint; and the jury were most definitely instructed that for such quantity only could they allow compensation. In the general charge the learned and careful trial judge said: “ The land is situated in
By the second assignment error is alleged in allowing D. K. McGunnegle to testify as to where the low-water line was in front of his mother's property before the Davis island dam was constructed. This testimony probably ought to have been rejected, for the line of low water before the construction of the dam was not the question before the jury; but the admission was harmless, in view of the instructions contained, not only in the general charge, but in the specific answer to defendant’s fourth point, “ that for the purposes of this case, the low-water mark is the line of the water at pool full, which is the line of the water when it is just at the crest of the Davis island dam.” And so of the third assignment, complaining of the admission of the testimony of J. W. Mayes, that if the land had been filled up out to the harbor line he would add to the price of the land at least one-third, for in the answer to defendant’s eighth point the jury were told that the verdict could not be based upon any use of the land which contemplated a filling of the river to the harbor line. The same instruction was contained in the answer to the fifth point.
It does not appear just when the trial judge made the remark complained of in the fourth assignment. It was made during the argument of counsel, which may have been a running discussion between them during the trial, in which the court intervened and made the remark attributed to it; but, whenever made, the defendant was not harmed by it, even if the jury heard it, for they were told that neither the defendant nor any one else could fill beyond low water. The correct instructions went further in stating that an owner of land front
The assignments are all dismissed and the judgment is affirmed.