Barnett v. Yeadon Borough

37 Pa. Super. 97, 1908 Pa. Super. LEXIS 247

• Court: Superior Court of Pennsylvania
• Decided: July 15, 1908
• Docket: Appeal, No. 110
• Status: Published

Opinion

Opinion by

Porter, J.,

The borough authorities were vested with a discretion to open and grade Rockland avenue, and the record contains no suggestion that there was any irregularity in the manner in which they exercised the power conferred upon them by statute. The avenue having been regularly opened and graded, the only question to be determined in this proceeding was the effect upon the market value of the plaintiff’s property resulting from the work as actually done. It was not material to inquire what influences led the borough authorities to grade and pave the street, and the first and second specifications of-error are overruled.

The evidence admitted under the third specification of error certainly did the defendant no harm, it amounted only to the statement that the part of plaintiff’s property between Glenrock avenue and Grant street contained a frontage on Rockland avenue of 185 feet, a fact which was undisputed and which the plaintiff had already shown. This specification is dismissed.

The learned counsel for the plaintiff had throughout tried his case upon the theory that the land in question was more valuable for building than for farming purposes, and his witnesses had testified to extravagant estimates of damage, which . from cross-examination had been shown to be based largely upon what they had believed it would cost to fill up the land to the grade of the street. The plaintiff had, notwithstanding the objection of the defendant, introduced evidence as to what would be the reasonable cost of grading per cubic yard. The testimony introduced by the defendant, which is the subject of the fourth specification of error, went only to show that the filling up would be a useless expenditure of money, that the part of the property which the witnesses of the plaintiff thought ought to be filled up at an enormous éxpense was not worth as much as before the grading of the street and would not be worth as much after the filling as the witnesses for the plaintiff had said it would cost to fill. This evidence was properly admitted as directly tending to show that the basis upon which the witnesses of the plaintiff had placed their estimate of the damages was altogether erroneous. The fourth specification of error is overruled.

That the borough had not made provision for the erection of a bridge over the railroad was an admitted fact in the case, and the refusal of the court to permit the plaintiff to re-prove that fact by the oral testimony of a particular witness did the defendant no harm. The witness Cockran had not in his examination in chief given any testimony relating to the bridge, and for the defendant to attempt to interrogate him upon that particular point was not within the line of proper cross-examination. The fifth and sixth specifications of error are without merit. The predecessor in title of the plaintiff had laid out this property in a plan of lots and streets, one of which was Rock-land avenue, and had sold lots in accordance with that plan; there was no error in the admission of this plan in evidence. There was evidence that at least a part of Rockland avenue had been opened and actually used by the public, and that fact was properly submitted to the jury, under the conflicting evidence. The seventh, eighth, ninth, eleventh, thirteenth, fifteenth and seventeenth specifications of error are overruled.

The affirmance by the court of the fourth point submitted by the defendant, is the subject of the fourteenth specification of error. The point was in this language, viz.: “In considering the damages, the jury must take into consideration the benefits to be derived from the opening of Rockland avenue as a public highway, and thereby making communication practicable between the parts divided by the railroad.” This point was affirmed without qualification. This ruling manifestly tended to mislead the jury, for the only effect which it could have had upon their minds was to lead them to the conclusion that in estimating the damages they must consider the improvement as having made “communication practicable” between the parts of the land divided by the railroad. The fact was directly the reverse of this; the only improvement which the evidence shows had been contemplated by the borough had been completed, and had resulted in two fragments of a highway with a chasm, over twenty feet deep through which the railroad passed, separating them. There was a theoretical highway and an active pedestrian who could climb down the embankment upon one side of the railroad and up that upon the other side, might have a right to walk across the railroad at grade, but there was no continuous highway at the grade the borough had established. The borough had graded the highway up to the line of the railroad on each side, but it had taken no steps to join these broken fragments, and no bridge may ever be built. This being the case, it was error to affirm the point without qualification. The jury should have been instructed that they were to deal with the conditions actually existing and not with mere possibilities as to what might be done in the future. The fourteenth specification of error is sustained.

The judgment is reversed and a venire facias de novo awarded.