Strathern v. Borough of Braddock, 11 Pa. Super. 1

Strathern v. Borough of Braddock

11 Pa. Super. 1 | Pa. Super. Ct. | 1899

Opinion by

Orlady, J.,

The defendant borough changed the grade of one of its highways at the side of the plaintiff’s property, and in furtherance of the improvement a uniform grade was established between two streets in such a way as to make an excavation of about six inches at the corner of Camp avenue and Fifth street, and thence along Fifth street the length of plaintiff’s lot, 150 feet, and an additional eighteen feet beyond the lot line to the south curb line of a twenty-foot alley in the rear of his premises, at which point the excavation was about four and one half feet below the original grade. The borough graded only the cart or wagon way and left a strip of ground ten feet wide, the full length of his lot, between the cart or wagon way and his property line. The lot was purchased by the plaintiff in 1896, at which time it was practically level with Camp avenue and receded towards the alley with a fall of about two feet. This grade was overcome by the material dug out of the cellar where the plaintiff built his dwelling house, so that the surface of the lot was made nearly level with the adjoining streets, Camp avenue and Fifth street. In order to make the pavement grade conform to the new grade of the cart or wagon way the plaintiff made a corresponding excavation and built a retaining wall for the purpose of supporting the bank. The grading of *5the pavement was done at the same time as that of the street and the borough had not paved the street up to the time of the trial of this case. The plaintiff was permitted to testify, under objection, that he had paid $81.80 to have the pavement graded to the street line. The evidence was objected to as ■immaterial, irrelevant, and incompetent, hr that it was not the duty of the owner to grade the sidewalk. The amount paid for having the work done was conceded to be fair and reasonable, and the evidence was admitted, as stated by the court. “ If it was the duty of the borough then, if they left the street in an unfinished condition, it is for the jury to say whether that faGt did not affect the market value of the property, and this is one method of finding out how much it affected it. This without regard to whose duty ihwas to grade the sidewalk.” Standing alone, this was an error. The grade for the pavement was fixed by the borough, the work on the sidewalk being done by the contractor, and upon the same terms, and at the same time that the street was changed. In the general charge the matter was properly, guarded by the learned trial judge, viz: “ If there was grading to be done in order to put it in marketable shape; or if there was sloping; or if there was a wall to be built, those are matters of which it is proper that you should know the cost, but this is with a view of enabling you to determine what the real market value of it was after the improvement was made, after the street was graded. None of these are distinct elements of damages. He should not be allowed for any of these expenses that he went to unless they affected the market value. If he chose to do anything that did not affect the market value, he could not be allowed for it here. The whole matter comes back, and I repeat it to you, to determine what the difference in the market value was before this grading was done and after. If there was any difference, if the property was worth more, then he is not damaged; if it was worth less, then he is damaged the amount of the reduction.” The same thought was repeated several times in varying forms. From the testimony of the borough engineer it is certain that the work was left in an incomplete condition, and that some work ■was required to place the plaintiff’s property in a convenient and marketable condition. The alley in the rear of the lot was not graded. A retaining wall or a substituted terrace was nec*6essary to adapt the property to the changes made by the borough on Fifth street, and the evidence, of which complaint is made in the assignments, was carefully restricted by the court and the whole case was submitted to the jury in a cautious and adequate charge, to which no exception was taken, and of which no complaint is made. The case was evidently tried so as to comply with the decision of the Supreme Court in Dawson v. Pittsburg, 159 Pa. 317, and we do not discover any substantial error in the record.

The judgment is affirmed.