Dague v. Commonwealth

211 A.2d 527, 418 Pa. 340, 1965 Pa. LEXIS 602

Opinions

Opinion by

Mr. Chief Justice Bell,

Mrs. Dague, appellant-landowner, was awarded damages of §18,200 by a Board of Viewers for a portion of her property condemned by the Commonwealth for purposes of constructing a limited access highway. The Commonwealth appealed and at the ensuing trial, a jury returned a verdict for the appellant in the sum of $31,000, plus interest. The Commonwealth filed a motion for a new trial alleging excessiveness of the verdict. The lower Court ordered appellant to remit the amount of the verdict in excess of $18,200,. the amount of the Viewers’ award, or a new trial would be ordered. Appellant refused to accept the remittitur; the Court ordered a new trial and from this Order appellant took this appeal.

While the case, as we shall see, was very unusual, the question raised by this appeal boils down to this: Did the lower Court commit either a clear abuse of discretion or an error of law which controlled the outcome of the ease? Vaughan v. Commonwealth, 407 Pa. 189, 180 A. 2d 12; Bohner v. Eastern Express, Inc., 405 Pa. 463, 472, 175 A. 2d 864.

Appellant’s property consisted of a tract of farm land (on which she raised cattle and sheep), contain-ting approximately 124 acres. On this property, there was a two-story frame, 6-room dwelling house which had no electricity, no bathroom facilities and no running water,

Footnotes

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* and a frame barn, a sheep shed and wagon shed. Appellant’s property had no frontage on any public road; the only access to it was by an unpaved dirt lane approximately 18 feet wide, good enough for a. jeep to traverse but difficult for an automobile. While this lane ran through the property of an adjoining landowner, appellant was entitled to use the lane as the result of an easement by necessity.

The Commonwealth, under its power of eminent domain, condemned and appropriated for the highway approximately 21.5 acres of appellant’s land, which included the frame barn and wagon shed. The remaining 102.5 acres were severed by the highway into two tracts: (1) a 36 acre tract* which was undisturbed by the condemnation, and (2) a 66.5 acre tract which was landlocked and cut off from any approach whatever because of the limited access highway that was to be built over appellant’s land.

At the trial, the witnesses for the Commonwealth— applying the before and after test — valued the property taken at from $9,300 to $10,400; appellant’s witnesses’ valuations ranged from $31,400 to $31,800.

In Mazur v. Commonwealth, 390 Pa. 148, 134 A. 2d 669, the Court pertinently stated (pages 151-152) : . . ‘While the amount as found by the Board of View is not binding in any sense upon the Court, nor is it relevant testimony in the trial of the case upon an appeal from the action of the Board of View, yet it is a fair indication of the amount of damages suffered by the land owners and on a motion for a new trial should be considered

Moreover, in Chiorazzi v. Commonwealth, 411 Pa. 397, 192 A. 2d 400, the Court aptly stated (page 400) : “The award of the board of view is an important circumstance or factor to be considered when a new trial is requested either for inadequacy or excessiveness of the jury’s verdict, but it is not controlling: Frontage, Inc. v. Allegheny County, 408 Pa. 165, 182 A. 2d 519; Vaughan v. Commonwealth, 407 Pa. 189, 180 A. 2d 12; Schuster v. Pennsylvania Turnpike Commission, 395 Pa. 441, 149 A. 2d 447; Mazur v. Commonwealth, 390 Pa. 148, 134 A. 2d 669.” See also: Vaughan v. Commonwealth, 407 Pa., supra; Young v. Upper Yoder Twp. School District, 383 Pa. 320, 118 A. 2d 440.

What makes this case very unusual is (a) that the trial Judge was not a member of the Court en banc (because his term had expired) and (b) the three Judges who sat en banc visited the property and (c) each wrote an Opinion assigning a different value to the property taken. However, after noting the wide disparity between the jury’s verdict and the amount of damages awarded by the Board of Viewers, the Court en banc unanimously agreed upon the Order of Remittitur or, failing that, the grant of a new trial.

A property owner is not entitled to recover the sentimental value of his home, but only the market value of the property taken. In Gilleland v. New York State Natural Gas Corporation, 399 Pa. 181, 159 A. 2d 673, the Court accurately stated the law (page 184) : “The general rule is that what must be assessed is the market value of the property as affected by the taking. This is done by determining the market value of the property as a whole immediately before the talcing and unaffected by it and the market value immediately after the taking and affected by it: Johnson’s Petition,’ 344 Pa. 5 (1942), 23 A. 2d 880; Dyer v. Commonwealth, 396 Pa. 524 (1959), 152 A. 2d 760.”

We believe, from our study of the record, that there was no clear abuse of discretion or error of law in the final Order which is the subject of this appeal.

Order affirmed.

Mr. Justice Jones and Mr. Justice Eagen dissent.

only an outside hand pump.

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There is conflict in the briefs and in the testimony as to whether the dwelling house was situated in this tract,