Dawson v. City of Pittsburgh

• Decision Date: 30 December 1893
• Docket Number: 284
• Citation: 159 Pa. 317,28 A. 171
• Parties: Dawson, Appellant, v. Pittsburgh
• Court: Pennsylvania Supreme Court

28 A. 171

159 Pa. 317

Dawson, Appellant, v. Pittsburgh

No. 284

Supreme Court of Pennsylvania

December 30, 1893

Argued November 8, 1893

Appeal, No. 284, Oct. T., 1893, by plaintiff, Susannah Dawson, from judgment of C.P. No. 3, Allegheny Co., Feb. T 1892, No. 196, on verdict for defendant.

Appeal from viewers assessing damages and benefits for change of grade of Westminster street in the city of Pittsburgh. Before McCLUNG, J.

At the trial it appeared that plaintiff was assessed by the viewers with the sum of $1,479.74 as benefits. Various witnesses testified as to damages.

When William A. Dawson, a witness for plaintiff, was on the stand he was asked:

"Q. What is there in the change of grade and other improvements there that affects the value of your property? A. Well we will have to fill up the lot and raise our house and place our walks and drives, to place them on an equal with the street. Q. What effect, do you know, would that have on your shrubbery and trees, etc.? A. I understand we would lose them all. Q. Are they valuable? A. Yes, sir. Q. Are the shrubbery and trees and things of that sort on your place valuable? A. Yes, sir. Q. It would practically destroy them by filling, would it? A. So I understand from florists and men that know about trees; we would lose them all. Q. What estimate have you of their value?" Objected to as incompetent and irrelevant. Objection sustained and bill sealed. [1]

"Q. Leaving out of the question, Mr. Dawson, any benefits by reason of the paving of Westminster street and taking into consideration the injury to your mother's lot by the change in the grade, what, in your judgment, and so far as you have been able to ascertain, as you say you made inquiries into the subject, would be the amount of your mother's damage there?" Objected to as incompetent and irrelevant. Objection sustained and bill sealed. [2]

"Q. State to what extent your mother's property was injured by reason of the change in the grade on Westminster street, Mr. Dawson?" Objected to by counsel for defendant as incompetent and irrelevant. By the Court: It is evident that the question is not understood by the witness as involving the true measure of damages indicated by the court, and the objection is therefore sustained. The objection is sustained with a view of confining the estimated damage to the difference in the market value before and after improvement. We will allow that to be shown. [3]

"Q. Have you inquired into and obtained data upon which to base an estimate of what expense your mother would be put to to put the lot and the property in relatively the same condition and position with reference to the present grade of the street as it was before? A. Yes, sir. Q. Now, Mr. Dawson, will you state what that is?" Objected to. Objection sustained and bill sealed. [4]

"Q. Mr. Dawson, what in your judgment is the difference between the value of that property of your mother's where you live, improved as it is now, on the old grade instead of the present grade, from what the property would be worth with the improvements at the present grade?" Objected to. Objection sustained and bill sealed. [5]

"By Mr. Woodward: I propose to prove that by the change of grade this property is injured, without regard to any benefits the property received from the paving. I assume that it don't matter if the property was paved on the original grade. Of course, there wouldn't be any damage from the paving. If the property has been damaged by the grade, then the damage done by the grading, whatever it is, we have a right to recover, irrespective of whether the property is benefited by the paving or not. By the Court: Q. Did the viewers assess you for paving? A. Yes, sir. Q. Is the assessment unappealed from for paving? By Mr. Woodward: A. The question as to the benefits for paving have been disposed of; they have been confirmed by your honors; so that that has nothing to do with and is not involved in this case. By the Court: Q. If this party was allowed what she would otherwise be assessed for paving as damages for change of grade, then she has got it once. Has this party been assessed for benefits? A. Yes, sir; and it has been settled by your Honor's decree. By the Court: The appeal so far as I have the papers here seems to be confined to the question of damages. It don't make a particle of difference as to whether they got credit for the benefits, assuming that she was assessed for the paving the same as others. It is understood that this appeal is confined to damages simply. Then we think the question is the difference in market value before and after the improvement. That I understand to be the rule in cases of this sort. Q. Mr. Dawson, have you made any estimate of your damage there? A. Yes, sir. Q. By changing the grade of that street? Objected to by counsel for defendant on the ground that it is not a proper question to ask. The proper question is, what is the difference in the market value of this property before and after the improvements; not as to a particular estimate of what the damage is. By the Court: We will allow the plaintiff to show the amount of damage shown by the difference in the market value of the property before and after the improvements. Q. Go on and state, Mr. Dawson. A. I made an estimate of what it would cost to raise the house" -- Objected to. Objection sustained and bill sealed. [7]

Mathew Mawhinney, a witness for plaintiff, was asked: "Q. Mr. Mawhinney, where do you live? A. I live in Bellefield, on Dithridge street. Q. Are you acquainted with the property of Mrs. Dawson? A. I have seen the property. Q. Were you acquainted with it before the improvements were made? A. I saw it before the improvements were made. Q. Do you know about what the market value of the property was on that street? A. No, sir; I don't. Q. Do you know what the people generally held their property at? A. No, sir. Q. Didn't know that? A. No, sir; didn't know that. [Q. Do you know whether this property was injured by the change in the grade on that street?" Objected to as incompetent and irrelevant. Objection sustained, and bill sealed.]

When D. H. Bochman, a witness for defendant, was on the stand he was asked: "Q. Prior to the improvement of West. minster street, grading, paving and curbing, in 1891, were you fairly familiar with the values of property in that neighborhood? A. I can't say I was familiar with the values of it; no, sir. Q. Did you have sufficient knowledge of the values of properties along there to express an opinion of the values along there? A. Yes, sir. Q. Prior to the improvement? A. Yes, sir. Q. Prior to the improvement what would you say was the value of the Dawson property prior to the improvement per foot front? Objected to by counsel for plaintiff for the reason that the witness has said he was not familiar with values. By the Court: The question is whether you have, from your knowledge of the value of property in the vicinity, had sufficient acquaintance with the market value of property to be able to express an opinion as to the market value of this particular property? A. I think so." Objection overruled, and bill sealed. [11]

The witness then stated his estimate by the acre.

Plaintiff offered in evidence in contradiction and rebuttal of the testimony of Joseph R. Woodwell, who testified for defendant in effect that the value of the property was enhanced several thousand dollars by the improvement, that portion of the viewers' report signed by himself and the other viewers, in which they find the damages to the property of Susannah Dawson to be $720. Objected to. Objection sustained, and bill sealed. [2]

The court charged in part as follows:

"[The Supreme Court has laid down the rule by which this damage is to be determined, and it is this: You are to take the market value of the property immediately prior to the improvement and unaffected by the improvement, and compare that with the market value immediately after the improvement as affected by that improvement, and, if it has been lowered by the improvement, then the party is damaged, and his damage is the amount of the difference. If the difference is the other way; if the value has been increased, then there is no damage. In that case, you simply find for the defendant.]

"[This is a simple rule which is perhaps slightly complicated in this case by another matter which is contained in this report. It is conceded that in this report this plaintiff, Mrs. Dawson, is assessed with the sum of $1,479.74, as benefits. The counsel for plaintiff concedes here that this part of the report is not appealed from. That as a result the plaintiff will be compelled to pay the sum of $1,479.74 for benefits. So that, if the market value was not enhanced as much as $1,479.74, then the plaintiff should have damages; and she should have as much damages as the enhancement is less than that amount.]

"For instance, if you find that the property was only enhanced a thousand dollars, she having to pay $1,479.74, her damage would be $479.74. The simplest way would be for you to add this $1,479.74 to the market value of the property as you find it immediately before the improvement and as unaffected by it, and then compare that with the market value of the property as you find it afterwards. If you find that notwithstanding that the market value is as great after as before with this addition, then this lady has suffered no damage. If you find with this examination that the value of the property has increased, then you find that she has suffered no damage. But you can certify no damage in favor of the city. If you find it is less, then you take this difference.

"[It is not a question of how much it would take to raise this property to the level of the street or to...