Coons v. McKees Rocks Borough
| Decision Date | 05 January 1914 |
| Docket Number | 175 |
| Citation | 90 A. 141,243 Pa. 340 |
| Parties | Coons v. McKees Rocks Borough, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 28, 1913
Appeal, No. 175, Oct. T., 1913, by defendant, from judgment of C.P. Allegheny Co., Fourth T., 1909, No. 704, on verdict for plaintiff in case of Margaret M. Coons, for use of Emma V. McFarland, now for use of Charles W. Warren, v. The Borough of McKees Rocks. Affirmed.
Appeal from report of viewers. Before EVANS, J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff for $5,000; a remittitur for $1,000 was filed and judgment was entered on the verdict, as reduced. Defendant appealed.
Errors assigned, among others, were various assignments referred to in the Supreme Court.
The assignments are all overruled and the judgment is affirmed.
R. S Martin, with him Edward F. Duffy, for appellant.
R. B. Petty, Jr., of Petty & Sons, for appellee.
Before FELL, C.J., BROWN, ELKIN, STEWART and MOSCHZISKER, JJ.
In January, 1903, the Pittsburgh Railroad Company leased to J. N. Coons for the term of twenty years, commencing April 1, 1903, a certain piece of ground, with the improvements thereon, in the defendant borough, at a rental of $90 per month; the lease stipulated that the "tenant shall not have the right to move any of the buildings now or hereafter placed on said lot." The improvements consisted of some frame buildings, and subsequently a double brick building was erected, presumably by the tenant. In December, 1903, J. N. Coons and wife executed an assignment of the lease to Samuel E. Coons, who forthwith reassigned it to Margaret M. Coons. In 1907 the defendant borough raised the grade of Chartiers avenue in front of the property in question about five feet; this had the effect of placing the two frame houses and the large double brick structure, which were at grade and stood out flush with the building line of the street, below the new level to that extent. In February, 1909, Margaret M. Coons and husband executed two assignments to Emma V. McFarland, one covering the leasehold and the other their claim for damages arising out of the change of grade. In April, 1909, on petition of Emma V. McFarland, viewers were appointed to assess the damages resulting to the leasehold, and she was awarded $1,750, for which judgment was entered in September, 1909. The borough appealed to the Common Pleas. In July, 1909, Emma V. McFarland died leaving a will in which, after making several specific bequests, she devised the remainder of her property to her husband, Thomas W. McFarland, and appointed him executor; but the testatrix made no special mention of her claim for damages against the defendant. In December, 1909, an agreement was filed of record in the court below signed by the solicitor for the borough and the attorney for "Margaret M. Coons for the use of Thomas W. McFarland, executor of Emma V. McFarland, deceased," in which it was stipulated that the case should be proceeded with and tried on its merits upon the issue "whether or not the leasehold property . . . was damaged . . . by the change of grade . . . and if . . . damaged, to what amount." In November, 1911, Thomas W. McFarland, personally and as executor, executed two assignments whereby he transferred to Charles W. Warren (the use plaintiff) the leasehold and claim for damages. The record in the court below was amended, first, by the suggestion of the death of Emma V. McFarland, and the substitution of her executor, Thomas W. McFarland, next, by the substitution of Thomas W. Warren as use plaintiff, and, finally, by permitting the damages averred in the statement to be increased from $2,500 to $4,000. At the trial of the appeal, which occurred in February, 1913, the jury rendered a verdict in favor of the plaintiff for $5,000, which the trial judge reduced to $4,000, and the plaintiff accepted that amount by a stipulation filed of record. Judgment was entered upon the verdict and the defendant has appealed to this court.
The first and third assignments complain of the admission of evidence relative to the necessity for and the proper cost of raising the buildings on Chartiers avenue to conform to the new grade. In Dawson v. Pittsburgh, 159 Pa. 317, we held that testimony of this character was admissible in a change of grade proceeding, and that the probable cost or expense of raising a house might be considered; not, of course, as a separate item of damage or as an independent fact for the jury, but as an element bearing on and affecting the market value. Chambers v. South Chester Boro., 140 Pa. 510, relied upon by the appellant, is explained and distinguished in Dawson v. Pittsburgh, supra, upon two grounds, (1) In that case the cost of raising the building was sought to be introduced as a separate item of damage, and (2) The lot never had been on a level with the original grade of the street; Edsall v. Jersey Shore Boro., 220 Pa 591, may also be distinguished upon the latter ground. In Patton v. Philadelphia, 175 Pa. 88, evidence as to cost of restoring a property to its former condition by making a fill was permitted, this court stating by Mr. Justice MITCHELL, "Where a street is opened at a grade which leaves the adjoining property in a depression, the expense of putting the property in condition to make use of the street was held in Dawson v. Pittsburgh to be one of the elements of damage . . . the offers of evidence, therefore, as to the amount and the cost of the filling required to make the lot conform or to be available for use at the new grade were competent and should have been admitted, not as independent items of damage, but as elements to be taken into consideration by the jury with other circumstances, in determining the market value of the property before and after taking a part of it for the street." Also see, Shaffer v. Reynoldsville Boro., 44 Pa.Super. 1, and Hill v. Oakmont Boro., 47 Pa.Super. 261. In the case at bar the trial judge explained the law as ruled in these authorities, and made it plain not only at the time he admitted the testimony but by numerous reiterations in his charge, that the jury could not under any circumstances award the plaintiff the cost of raising the buildings, and that they were not to consider the proper expense of so...
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