432 Pa. 280 | Pa. | 1968
Opinion by
This is an appeal by the Commonwealth from a judgment entered on a jury verdict awarding appellees, Harry A. and Astrid M. Werner and Mahoning Valley Sand Company, a total of $312,333.33 damages for the condemnation of 21.1308 acres.
On February 27, 1957, the Commonwealth, acting through the Department of Highways, condemned for road construction purposes 21.1308 acres of a 266.32 acre tract owned by appellees, Werners. The Werners had acquired the property in 1950 and, at the time of the condemnation, were using the land for farming purposes subject, however, to a lease agreement giving appellee-Mahoning the right to remove underlying sand and gravel. The parties stipulated that the lease made Mahoning the fee owner of the minerals and that 1,-492,670 tons of sand and gravel had been removed between the effective date of the lease, May 16, 1955, and March of 1965.
Immediately to the east of the Werner property and separated from it by old traffic Route 1 is a tract of land owned in fee by Mahoning. On this tract Ma-honing built a sand and gravel processing plant to process the gravel quarried from the Werner tract. The gravel was transported from the Werner tract to the processing plant by means of a hopper and conveyor belt.
In 1963 the Board of Viewers awarded the appellees $130,000. The Commonwealth appealed in order
At the trial in the Court of Common Pleas of Lawrence County the jury returned a verdict in favor of the appellees in the amount of $200,000 plus detention damages of $112,333.33, or a total of $312,333.33. Motions for a new trial were denied and judgment entered on the verdict.
The Commonwealth advances five arguments as to why this Court should reverse the judgment below. We will consider each contention in turn.
I
The Commonwealth contends that the trial court erred in allowing one of the appellee’s expert witnesses, a civil engineer, to testify that 1,292,846 tons of sand and gravel would be lost by reason of the condemnation.
The basic principles of condemnation are not in dispute. First, the general rule is that the proper measure of damages for lands taken under the power of eminent domain is the difference between the market value of the land before the exercise of the power and as unaffected by it and the market value immediately after the appropriation and as affected by it. Gilleland v. New York State Natural Gas Corp., 399 Pa. 181, 184, 159 A. 2d 673 (1960); Brown v. Commonwealth, 399 Pa. 156, 158, 159 A. 2d 881 (1960); Spiwak v. Allegheny County, 366 Pa. 145, 147, 77 A. 2d 97 (1950); Westinghouse Air Brake Co. v. Pittsburgh, 316 Pa. 372, 375, 176 A. 13 (1934); Reading & Potts-
The Commonwealth would have us include a fourth rule: not only may the condemnee not introduce evidence of the number of tons of minerals lost and then multiply that number by a dollar figure, he may not introduce evidence of the number of tons for any reason. The Commonwealth maintains that this is already the law in Pennsylvania and relies on four cases: Searle, Balthaser, Sgarlat and Williams v. Department of Highways, 423 Pa. 219, 223 A. 2d 865 (1966). A close reading of these four cases reveals, however, that in each instance, the condemnee multiplied the number of tons by a dollar figure. Therefore, none of these cases answers the precise question before us—whether the condemnee can introduce evidence of the number of tons if he does not multiply that figure by some dollar amount. Our research has not uncovered any case in this Commonwealth dealing with this precise question.
The question has been decided in numerous other states, however. All of the cases cited to us in the briefs of both parties have held that such evidence is admissible.
We are not quarreling with the time-honored rule that the jury may not multiply the number of tons by some dollar figure in order to value the minerals separately. This is error for two reasons. First, the minerals may not be valued separately apart from the remainder of the tract. Second, it is impossible to determine how much a ton of sand and gravel will be
The Commonwealth argues, however, that even if this argument is sound, the damage has already been done in this case because a dollar figure had been in? troduced into evidence which the jury could have used to multiply against the number of tons. The lease agreement between the Werners and Mahoning-^introduced into evidence without objection by the Commonwealth—provided for a fixed royalty payment per ton.: The Commonwealth does not argue that the lease should not have been admitted; instead it maintains that the jury now had both the number of tons and a dollar figure and that, in effect, this violated the longstanding rule against the introduction of these two items of evidence in combination.
Merely because a dollar figure is admissible for some other purpose is no reason for excluding evidence as to the number of tons. The solution to this problem is a cautionary charge to the jury. The court below instructed the jury that they were not to place a separate value on the minerals in place but were to compute one value for the entire tract and also instructed the jury that they were not to use information gathered from the lease in order to value the minerals lost. Although the judge did not specifically tell the jury that they were not to multiply the number of tons by some dollar figure, his charge was sufficiently clear to convey this meaning.
II
Two of the Commonwealth’s four remaining contentiong concern the decigion by the trial court to apply the integrated uge ingtead of the unity of uge doctrine to the factg of thig cage. Under the unity of uge doctrine, two geparate propertiég are treated ag one when they are go ingeparably connected in the uge to which they are applied that injury to one will necesgarily and permanently injure the other. Morris v. Commonwealth, 367 Pa. 410, 413, 80 A. 2d 762 (1951). The integrated uge doctrine relied upon by the court
The Commonwealth now objects to the admission of certain evidence concerning the processing plant and the marketability and quality of the sand produced by the Mahoning processing plant, contending that such evidence should have been excluded under Porter. This objection is without merit for several reasons. First, the Commonwealth failed to specify exactly which evidence it found objectionable but merely made general allegations that evidence was improperly admitted. Since it is impossible to determine exactly which evidence the Commonwealth is now attacking, we cannot determine whether the Commonwealth preserved its record by objecting to the admission of the evidence at trial. The trial court held that the Commonwealth had failed to object below. Without more specific allegations by the Commonwealth, we cannot upset this finding by the trial court. Second, the decision to apply the integrated use doctrine benefited the Commonwealth. The trial court also excluded evidence which it might have properly admitted concerning the processing plant. Both decisions indicate that the Common
Ill
The Commonwealth’s third objection is that the trial court erred in refusing the Commonwealth’s motion to withdraw a juror on three separate occasions. The first two instances again involved the integrated use doctrine. The Commonwealth objected when counsel for the appellees asked this question: “Now, we are going to ask you a question and we are going to ask you not to answer it until counsel for the Commonwealth has an opportunity to object. What in your opinion was the fair and reasonable market value of this property used in relation to the property of the Mahoning Yalley Sand Company, the processing plant and including that plant?” The Commonwealth did object, and the objection was sustained. Therefore, the question about which the Commonwealth now complains was never answered. The Commonwealth maintains, however, that this was one of several instances where counsel for the appellees tried to bring the unity of use doctrine into the case after the trial court had specifically ruled that the integrated use doctrine should be applied. This contention must fail. First, again it is not clear that this question was prejudicial to the Commonwealth’s case. The trial court aptly summarized the problem facing him in using a new theory handed down by this Court three months before the trial began: “Since the integrated use doctrine is
The second motion was made after counsel for the appellees asked counsel for the Commonwealth for “the machinery appraisal that was made by the representative of the Commonwealth” which dealt with property on the Mahoning property. The Commonwealth maintains that this is another example of the repeated efforts by counsel for the appellees to bring the unity of use theory into the case. Again, we must conclude that the trial court did not abuse its discretion in denying the Commonwealth’s motion. Nothing more was said about the appraisal in the presence of the jury. From what was said, the jury could not have concluded whether the appraisal dealt with equipment on the Werner or Mahoning property.
The third and final motion was made during final summation when counsel for the appellees began multiplying on a blackboard the number of tons of sand and gravel lost by the royalty figure contained in the lease. Upon objection by the Commonwealth, the trial court ruled that the counsel for the appellees could not continue with the multiplication. A product was
IV
Tbe Commonwealth’s fourth objection is that tbe trial court erred in selecting tbe jury five days in advance of the day which he bad set for tbe trial. The day set for jury selection was the last day of tbe civil term. Tbe trial court adopted this course of action because tbe case was tbe oldest on tbe civil list and had been continued on several occasions before. After the jury bad been selected, tbe trial was postponed five days because one of tbe attorneys for tbe Commonwealth■ was unable to attend. Furthermore, the Commonwealth has also failed to indicaté in what way it was prejudiced by this procedure. The contention of tbe Commonwealth in this regard is completely without merit.
V
Tbe Commonwealth’s final objection is that tbe trial court erred in not allowing counsel for the Commonwealth to cross-examine Mr. Werner concerning the price be bad paid for a parcel of land be bad bought to replace tbe land condemned by tbe Commonwealth. The trial court admitted that, in condemnation proceedings, a wide range of cross-examination is permissible when tbe condemnee takes tbe stand. However, tbe court excluded tbe evidence solely because there was no evidence that tbe land purchased by Mr. Werner was comparable to tbe land condemned. Such
Judgment affirmed.
There is dictum in the Searle case to the effect that measures of quantity are too uncertain to be reliable in condemnation cases. Searle v. Lackawanna and Bloomshurg R.R. Co., 33 Pa. 57, 64 (1859). We cannot rely upon this dictum as convincing authority. First, the Court was not facing the precise issue involved in this case. Second, methods of measuring quantity have been greatly refined since 1859. The record indicates that measuring the number of tons of subsurface mineral deposits is done scientifically and accurately today.
See, e.g., United States v. Land in dry bed of Rosamond Lake, California, 143 F. Supp. 314, 317 (S.D. Cal. 1956); Arkansas State Highway Comm. v. Cochran, 230 Ark. 881, 883, 327 S.W. 2d 733 (1959); 5.97752 Acres of Land in New Castle County v. Delaware,
The trial court charged the jury: “You shall not compute the individual value of the buildings upon the Werner property nor of the land or of the mineral deposits therein in arriving at a