142 A. 867 | Pa. | 1928
Argued March 20, 1928. Appellant's property fronted 200 feet on Mahoning Avenue in the City of New Castle, Pa. It was all at a grade level with the street. The city, with other municipalities and public service companies, erected a viaduct or bridge over the Shenango River, and the western approach necessitated a change in the grade of the street in front of appellant's property by the construction of perpendicular, solid concrete retaining walls, wholly within the street line. At one end of the property, the grade was raised 6 1/2 feet, gradually ascending to the other end, where the grade was raised approximately 17 feet. Prior to the change of grade, access was easy to the property from Mahoning Avenue. After the change, access was cut off from that avenue, and the use of the property for manufacturing purposes, or any other purpose, was thus interfered with; it was also injured by shutting off light and air. Appellant's claim was for consequential damages resulting from the change of grade. Before the Public Service Commission, it was awarded $15,000, and in the court below $10,000. From the judgment entered, the owner has appealed, and complains of trial errors.
At the rear of the property, there had been an alley, plotted on the original plan of lots, which had not been opened or used for twenty years or more. The court below, in charging the jury, said that the plaintiff did not own the land in the alley, which fact should be taken into consideration by the jury in valuing the property. The owner of land on both sides of an alley, plotted on a plan of lots which has never been accepted by the municipality nor used by the public as an alley for more than twenty years, owns the land within the lines of the plotted alley to the same extent as he owns title to the adjoining land: Woodward v. City of Pgh.,
Some comment is made that the building, which was erected on this alley, had been placed there after the change of grade was adopted, but this would not affect appellant's right to recover damages, unless the building was erected in the face of a change of grade in immediate prospect. While the general rule has been stated that a municipality is not liable for injuries caused to a building erected after the establishment of a change of grade, such rule is limited to cases where a mutual right exists in the property owner to demand compensation, according to the rule announced in Whitaker v. Phœnixville Boro.,
There is complaint made as to the admission in evidence of the testimony of the assessor. This witness made no effort to fix value, but merely testified, without naming any amount, as to the relative value of the property before and after the viaduct was constructed. The admission of such evidence is largely within the discretion of the trial judge. Its effect and the credibility of the witness was for the jury. This witness showed sufficient general knowledge to entitle him to testify, and one may testify in a land damage case that the owner has or has not suffered injury without fixing the amount, if such evidence is in corroboration of other evidence definitely asserting values: Wanamaker v. Philadelphia,
Appellant argues with much force that witness Morehead should have been permitted to testify as an expert. He was an insurance agent and placed a value on this property at various times in the past for the purpose of insurance only, not having in view a proceeding like the one in question. The value which a property must take in condemnation proceedings is the market value as a whole, for the purpose for which used or for what use it may be susceptible, while insurance value looks toward what might be termed a reproduction cost of the buildings thereon, what it would take to rebuild the structures in case of fire; at least, that is the theory on which most insurance is written. Market value includes ground value, while insurance does not. This witness clearly disqualified himself when he admitted that he valued for insurance purposes, and part of his knowledge was secured from appellant's officers.
In estimating damages, the owner proceeded on the theory of the market value of the plant as a whole as a manufacturing establishment before and after the construction. *332
Appellant then offered, through this witness, evidence as to the value of parts of the property or some of its elements, filling in later the other features of value by other witnesses. This, it is stated, was because of the nature of the property and the injury. This could not be done. We have so held in McSorley v. Avalon Borough School District,
We have considered all the assignments of error to which the statement of the question involved relates, and we think the court has not committed reversible error.
Judgment of the court below on appeal to No. 78 is affirmed. *333