In re Condemnation of Certain Interests in Lands of Lenik

Citation172 A.2d 316,404 Pa. 257
PartiesIn re CONDEMNATION OF CERTAIN INTERESTS IN LANDS OF John LENIK and Annelia Lenik. Appeal of John LENIK and Annelia Lenik.
Decision Date26 June 1961
CourtUnited States State Supreme Court of Pennsylvania

Walter T. ReDavid, ReDavid, Sarks & Orlowsky, Chester for appellants.

Vincent P. McDevitt, Robert P. Garbarino, Philadelphia, Edward F Cantlin, J.H. Ward Hinkson, Chester, for appellee.

Before CHARLES ALVIN JONES, C. J., and MUSMANNO, BENJAMIN R. JONES COHEN, BOK and EAGEN, JJ.

BOK, Justice.

The Philadelphia Electric Company, having power of eminent domain, condemned certain interests of Mr. and Mrs. Lenik in a strip of their land in Delaware County so that the company might string its wires. It did not take the fee but only a right of way 700 feet long and 150 feet wide, plus trimming rights in two other strips, each 50 feet wide and lying along each side of the right of way so that it could prevent growing things from damaging the wires.

The parties failed to reach agreement about purchase and viewers were appointed on the company's petition to assess damages. The award of the viewers was $7,400 and both parties appealed to the court below, which empanelled a jury and tried the case. The jury gave the Leniks $13,500 and the company filed motions for judgment n. o. v. and for a new trial, the latter of which was granted for the reason that the verdict was against the weight of the credible evidence. It may be noted that the award of $7,400 included damages for delay in payment while the verdict of $13,500 did not: this was proper enough, since there is evidence that Mr. Lenik threatened to blow up the company's installations and shoot its personnel. However, the company offered its bond which Mrs. Lenik accepted, and the company entered the property and made its installations without incident. The property owners appealed to us.

One of the last assailable reasons for granting a new trial is the lower court's conviction that the verdict was against the weight of the evidence and that new process was dictated by the interests of justice. With reasons for this action given or appearing in the record, only a palpable abuse of discretion will cause us to overturn the court's action. Bellettiere v. City of Philadelphia, 367 Pa. 638, 81 A.2d 857; Elza v. Chovan, 1957, 396 Pa. 112, 152 A.2d 238; Burd v. Pennsylvania Railroad Co., 1960, 401 Pa. 284, 164 A.2d 324. And it is our duty to review the evidence to see whether error or injustice appears Nikisher v. Benninger, 1954, 377 Pa. 564, 105 A.2d 281.

When so flensed, the record fully supports the court's action.

The weak point in the case involves the evidence of value before and after condemnation. Mrs. Lenik, as owner, testified to value of $35,000 before the taking, and $20,000 or $21,000 after taking, or damages of $14,000 or $15,000. The professional appraiser for the owners gave values of $29,400 before and $18,200 after, or damages of $11,200. Those for the company gave $30,000 before and $24,000 after, or damages of $6,000, and $26,000 before and $20,500 after, or damages of $5,500.

The interesting thing about these figures is the relatively narrow range of the values given the property before the taking. There was conflicting evidence whether the neighborhood was zoned industrial or residential, but it had not been developed and the highest and best use of the Lenik's property was that to which they were putting it, the growing of nursery stock. The professional opinions were noticeably close, and only the owner's estimate, which could be expected to be somewhat inflated, was a bit out of line. At the same time, ideas of the owners and their appraiser about value after the taking were remarkably close, while those of the company's two experts were also close but far below that of the owners and their expert.

The trouble therefore has to do directly with the value of what was taken and hence with the nature of what was taken. As said above, it was an easement and not the fee. What was left was the fee subject to the easement, and it is clear that the owners and their expert misunderstood it. Since the verdict was higher than the damage assessed by all of the experts and only a little lower than Mrs. Lenik's idea of what it was, it seems likely that the jury misunderstood it too.

There are no trial errors complained of, and the charge of the trial judge was as clear as the Gulf Stream. But it is equally clear that the owners failed to understand their rights. Mr. Lenik did not testify, but his wife did, and she said this:

'Q. New, what rights did you understand you and your husband would continue to have in the 150 foot strip that has been referred to here? A. Well, I know, I believe that we are still the owner although the Electric Company had the right to go through at any time and that we do not have the right to neither plant nor sell to advantage or anything overselves on that piece of ground.

'Q. I understand. Then you felt that because you were the owners in name, the depreciation was as great as it was because you felt you had really no actual dependable use of that ground; is that correct? A. That's right. The ground was absolutely...

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