Chambers v. South Chester Bor

• Decision Date: 09 March 1891
• Docket Number: 279
• Citation: 21 A. 409,140 Pa. 510
• Parties: JAMES CHAMBERS v. SOUTH CHESTER BOR
• Court: Pennsylvania Supreme Court

21 A. 409

140 Pa. 510

JAMES CHAMBERS v. SOUTH CHESTER BOR

No. 279

Supreme Court of Pennsylvania

March 9, 1891

Argued February 12, 1891

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF DELAWARE COUNTY.

No. 279 January Term 1891, Sup. Ct.; court below, No. 33 September Term 1889, C.P.

On May 7, 1889, upon the petition of James Chambers, filed under the act of May 24, 1878, P.L. 129, viewers were appointed to assess damages occasioned by a change of the grade of Edwards street, in the borough of South Chester, in front of a lot of ground owned by the plaintiff.

The viewers having made an award, and the plaintiff having entered an appeal therefrom, an issue was framed to try the amount of damages which the plaintiff was entitled to receive from said borough, by reason of such change of grade. This issue, and similar issues in four other cases relating to the same street, were tried together on June 17, 1890, when the following facts were shown:

Prior to 1888, Edwards street remained at the natural grade of the ground. In that year the proper authorities of the borough enacted an ordinance establishing a new grade therefor, and in pursuance of the provisions of that ordinance, caused a fill to be made in front of the plaintiff's property raising the surface of the street to the height of about eight feet above its original surface. Upon the plaintiff's lot were a dwelling-house and a stable, that were rendered difficult of access by the change of grade. It interfered also with the drainage of the property, so as to cause water to accumulate in the stable, and also in the cellar of the dwelling.

Witnesses having testified that, in order to give the plaintiff any benefit from the change of grade on Edwards street, it would be necessary to fill up the lot and raise the buildings on it, the plaintiff, Edward Barrowclough on the stand, made the following offers:

The plaintiff offers to prove what it will cost to fill up the entire lot on a level with Edwards street.

Objected to.

By the court: Offer overruled, because it does not appear that it was a level lot formerly.

Mr Ward: The man uses it for a specific purpose. He has built his house upon it, and erected a stable, and he lives there.

By the court: Whatever it will cost to restore the place to its former convenient use you may prove: but I will not permit you to show what it will cost to fill up the whole lot, as it was not level before.

Mr Ward: The plaintiff offers to prove that.

By the court: I will permit you to prove the difference in value in the market, between the lot as compared to what it was before the street was graded, and what it was immediately afterward; and you must confine yourself to that, and nothing else can be given. Now just make a note of that, and go on. You may take an exception to that.

I confine you now to the single point, what is the difference in the market value of that lot, unaffected by the raising of the grade, and as affected by the grade. I will confine you to that; so, the questions of filling up and grading are out of the case; exception.

I have held this rule to all cases of this kind, and the Supreme Court has sustained me. You may show that the house had to be raised, but I don't think the cost will be evidence. The question is merely this: What is the difference in the market value of this property, as affected by the grading and unaffected by it?

Charles H. Ladomus, a surveyor, called by the plaintiff, was asked upon direct examination:

Q. Now, can you give me the quantity of earth, as you measured it, that would be required to fill up that lot on a level with the grade? A. I can, yes sir. I can give it to you. Q. Give it to us then.

Objected to.

By the court: Objection sustained; exception.

Samuel Lyons being upon the stand as a witness for the plaintiff, the plaintiff's counsel addressed the court as follows:

Mr. Ward: I want to ask your Honor to consider an instruction which I propose to give the witness, and it is this: That in answering the question as to the difference in market value between a date anterior to the building and a date immediately afterward, the witness has a right, as an element of the depreciation of the market value, to include in his computation any expense that will be required to put that property in as good salable condition as it was before.

By the court: I instruct the witness that he has no right to do that. Now he understands me; let him answer the question as a real estate man: What is the difference in the market value, between the value of the property as affected by the change of grade and as unaffected by it, without going into any calculations as to what it would cost to fill it up or anything else. What is the difference in the market value? Exception.

A. That I am unable to say.

At the close of the testimony, the court, CLAYTON, P.J., charged the jury in part as follows:

All that the law can do is to measure the advantages with the disadvantages. If the advantages are in excess of the disadvantages, the law makes no compensation to the ones who have been injured by the removal of the earth; but, where the disadvantages are greater than the advantages, the law declares that a jury shall assess the difference and give it to the property owners. The law, therefore, gentlemen, does not permit you to say how much it would take to fill up a hole, how much it would take to bring the surface up to grade, how much it would take to tear down a house and build up a new one, or how much it would take to build a wall along the street to keep the earth from falling in upon your lot. That is not the measure of damages. The measure of damages is the difference in value of the lot, as affected by the change, as compared with its value before the street was graded. It is the difference between its value before and immediately afterward, or as soon afterward as the effect of the grade could be ascertained.

[So you see, gentlemen, the rule of law is one easily understood by the jury; it is a sensible rule. The question now before you is, not what it will cost to fill up these lots and bring them to the level of the grade; that is not the question; for it may never be necessary to fill them up. The question is, what is the difference in the market value of these lands before the street was improved and afterward; and whatever that difference may be, if it is in favor of the landowners, that is the damage to be awarded. If, however, you find that the advantages are in excess of the disadvantages, then there is no damage; because it must be obvious to all that the making of a street at a place where it was worthless before, if it followed the natural surface of the ground, must necessarily enhance the value of the land on each side of it.] It is worth a good deal to have an established grade. The value of the ground upon a street depends very much upon an established and settled grade. . . .

You will therefore confine yourselves, gentlemen, to the single question in issue, and by doing that you will get rid of many embarrassing questions in the case. The single question for your consideration is: What is the difference in the market value of these lots and pieces of ground in the market, before the establishment of this grade and unaffected by it, and the difference in value of them after the establishing of the grade and as affected by it? That is the question you will consider; and if you find that the effect of the establishing of this new grade was to add to the several properties a greater value than they had, and to benefit them more than it inflicted injury, then your verdict will be for the defendant. If you find that the effect of the establishing of this grade was to cause these several properties to suffer a greater injury than they were benefited by the new grade, then you will say how much that injury is, and award damages to the plaintiffs to that extent. . . .

The plaintiffs request the court to charge:

1. The several plaintiffs are entitled to recover for the damages suffered by their respective properties, in consequence of the filling of Edwards street by the defendant.

Answer: I say to you that they are entitled to recover damages for the change of grade of Edwards street. The filling is only important as showing, as far as it goes, what the change of grade will be; that is all. When the work is once commenced the damages are recoverable; but the jury are not to look at the amount of work that has been done there, but they are to look at the grade that has been established and decide what the effect of the filling or grading the roadbed or streetway, as established by the ordinance, is. It is the change of grade, that gives the plaintiffs damages, and not the filling. If the filling was above grade, of course they would be entitled to damages for that; for that would be a new change of grade if it was authorized by the borough. But it is the changing of the grade that is the foundation of the cause of action, in this case, and if you come to the conclusion, as I before stated, that these several plaintiffs have suffered damages greater than the benefits, from the change of grade, they are entitled to recover.

2. If the jury should find that the best method of restoring the property of any of the plaintiffs to the condition it was in before the filling, would be by raising the building thereon to the present grade of the street, and filling with earth around the same, protecting the embankment at the rear with the retaining wall, then the measure of damages would be the cost of such raising, filling-in, and building the wall taking into account the risk that might be incurred in such a process, injury to the building therefrom and the...