Brewer v. Blue Mountain Consolidated Water Co.

• Decision Date: 16 April 1937
• Docket Number: 14-1937
• Citation: 191 A. 408,126 Pa.Super. 553
• Parties: Brewer et al. v. Blue Mountain Consolidated Water Co., Appellant
• Court: Pennsylvania Superior Court

191 A. 408

126 Pa.Super. 553

Brewer et al. v. Blue Mountain Consolidated Water Co., Appellant

No. 14-1937

Superior Court of Pennsylvania

April 16, 1937

March 11, 1937, Submitted

Appeal from judgment of C. P. Monroe Co., Sept. T., 1925, No. 48, in case of Gardner Brewer et al. v. Blue Mountain Consolidated Water Company.

Appeals by property owner and by public service company from report of viewers. Before Greer, J., specially presiding.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff. Defendant appealed.

Errors assigned, among others, were various rulings on evidence.

Judgment affirmed.

Shull &amp Shull and James T. Kitson, for appellant.

Leo A Achterman, Russell L. Mervine and William H. Schneller, for appellees.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker and James, JJ. Opinion by Parker, J.

OPINION

Parker, J.

On appeal from an award by a board of viewers a jury found a verdict for $ 1,700, of which $ 200 was for delay in payment, for the plaintiff land owners against the defendant water company on account of the taking of a right of way for a water line. The defendant has appealed from the judgment entered and complains of alleged trial errors in the admission of testimony and in the judge's charge. The real complaint is as to the size of the verdict. An examination of all the evidence convinces us that if the verdict did not accurately reflect the damages suffered by the plaintiffs, this was due to the quality of the testimony given rather than to any trial errors. If better evidence could have been produced, the defendant must bear a share of the responsibility for the consequences.

The defendant elected to take a right of way sixteen feet in width extending diagonally across plaintiffs' farm a distance of 2,100 feet, on which it laid a twelve inch water line and buried it four feet under ground. It was stipulated that the time of taking should be fixed as of July 13, 1925.

The first assignment of error is to the admission of testimony of one of the plaintiff's and the ruling of the court which is shown by the following excerpt: "Q. What else did you have in mind it was adaptable for? A. Also, for bungalows, fisheries, its water is excellent for trout through there. Q. That is, to have a fishery built there? A. Yes. Mr. Shull: Objected to, it is incompetent, irrelevant and immaterial, and purely speculative. The Court: What does this court or jury know of fisheries? It is too general a term. Mr. Shull: We object to it as being purely speculative. The Court: We will let that in for the present."

The question was a preliminary one. Counsel, after qualifying the witness as to his competency to testify, was seeking to give the jury a description of the property before offering testimony bearing on the amount of the damages. To do so was not only proper but was eminently fitting as an aid to the jury in weighing the testimony of those pretending to fix values before and after the taking. "In estimating the value of the lot before the taking, its possible and probable uses are important elements, and may be shown by the opinions of experts": Harris v. Schuylkill, etc., R. Co., 141 Pa. 242, 252, 21 A. 590; Wilson v. Equitable Gas Co., 152 Pa. 566, 569, 25 A. 635. "In estimating the market value of the land, everything which gives it intrinsic value is to be taken into consideration. And it is not to be limited to a particular use": Allegheny v. Black's Heirs, 99 Pa. 152, 154. Also, see Cummings v. Williamsport, 84 Pa. 472; Penna. Schuylkill V. R. Co. v. Cleary, 125 Pa. 442, 17 A. 468.

In connection with this testimony it was shown that there were large springs upon the property, that the location was peculiarly adapted to use for building summer bungalows with accompanying pools, ponds, and the raising of trout. What was said in Brown v. Forest Water Co., 213 Pa. 440, 441, 62 A. 1078, is pertinent: "The defendant cannot properly complain of the admission of evidence that the property taken by it was adapted to reservoir purposes, from the natural formation of the land, the amount of water flowing over it, and its proximity to certain towns. All these matters were elements entering into the market value of the property."

It is true that the land owner may not show details of possible values or possible theoretical, speculative or fanciful uses to which the property might be put: Dorlan v. East Brandywine R. Co., 46 Pa. 520; Markle v. Phila., 163 Pa. 344, 30 A. 149; Walker v. R. R., 174 Pa. 288, 34 A. 560. Likewise, "an estimate of what property will be worth at a future day, or in an altered condition, is entirely without guide or measure, and must be wholly fanciful": Phila. Ball Club v. Phila., 192 Pa. 632, 652, 44 A. 265; Spring City Gas Co. v. Penna. Schuylkill V. R. Co., 167 Pa. 6, 31 A. 368. The evidence admitted was but descriptive of the uses for which it was claimed the property was presently available. When read with other evidence it appears that the suggested use was not visionary or speculative but a use for which there was then some demand. There was no attempt to show possible speculative or visionary values dependent on future conditions. The evidence was therefore properly received and this assignment of error must be overruled.

Defendant complains of the allowance of $ 200 for delay in receiving compensation for the land taken. The trial judge very properly directed the jury to find the amount of damages as of the agreed date and then separately fix such sum, if any as they should allow by way of compensation for delay in payment. The defendant argues that the delay was chargeable to plaintiffs alone since the plaintiffs, in their statement, claimed $ 25,000 as damages, which sum measured by the verdict was excessive and unreasonable, and therefore that no allowance should have been made for delay in payment. The facts will not support the premises of this argument. The taking was fixed as of July 13, 1925, but the petition for appointment of viewers was not presented by the defendant until January 5, 1931. The report of viewers was filed on February 8, 1932. After appeal the issue was called for trial and a jury was sworn on September 26, 1933. There was a mistrial and it was necessary to continue the case which was again tried on May 14, 1935. The delay in the jury trials was in part due to the necessity of calling a special judge to try the case. There is no evidence as to what demands were made by the plaintiffs prior to the filing of the statement of claim on December 21, 1932, more than seven years after the taking. The record does not show an offer of settlement by the defendant at any figure, nor do we find...