Mazur v. Commonwealth

• Decision Date: 30 September 1957
• Citation: 390 Pa. 148,134 A.2d 669
• Parties: Walter MAZUR and Anna M. Mazur, his wife, v. COMMONWEALTH of Pennsylvania, Appellant.
• Court: Pennsylvania Supreme Court

134 A.2d 669

390 Pa. 148

Walter MAZUR and Anna M. Mazur, his wife, v. COMMONWEALTH of Pennsylvania, Appellant.

Supreme Court of Pennsylvania

September 30, 1957

Argued April 16, 1957

Appeal, No. 102, Jan. T., 1957, from order of Court of Common Pleas of Schuylkill County, May T., 1954, No. 504, in case of Walter Mazur et ux. v. Commonwealth of Pennsylvania.Order affirmed.

Appeal by Commonwealth from $10,000 award by board of view in condemnation of real estate. Before CURRAN, J.

Verdict for plaintiff in amount of $4,053; plaintiff's motion for new trial granted. Commonwealth appealed.

Order affirmed.

John E. Lavelle, with him Joseph M. Donnelly, Deputy Attorney General, John R. Rezzolla, Jr., Chief Counsel, Department of Highways, for appellant.

John W. Schmitthenner, with him Paris J. DeSantis, for appellee.

Before JONES, C.J., CHIDSEY, MUSMANNO, ARNOLD and JONES, JJ.

OPINION

MR. CHIEF JUSTICE JONES

This appeal is from an order granting a new trial in an action to determine the damages due the plaintiff husband and wife for the Commonwealth's appropriation of a portion of their land for highway purposes in an exercise of the condemnor's power of eminent domain. A board of view awarded the plaintiffs $10,000 which the Commonwealth appealed to the court of common pleas. The issue was there tried to a jury, which returned a verdict for the plaintiffs in the sum of $4,053. On the plaintiffs' motion, the court granted a new trial on the ground that the verdict was inadequate. From that order, the Commonwealth has appealed.

At the time of the relocation and construction of the new highway the plaintiffs' tract, containing approximately 96 acres was bisected by a then existing highway with which a large portion of the property was level, a situation which admitted of driving directly to and from the highway and the property. Prior to the relocation, the portion of the land abutting on the highway had been surveyed and laid out as building lots. After the relocation and improvement, the plaintiffs' property was no longer level with the highway and the area laid out in building lots was inaccessible to the highway because of the changes in grade, which also affected the drainage and cause surface water from the highway to run upon portions of the plaintiffs' land making it swampy and rendering it useless for any purpose. In the construction of the new highway the Commonwealth actually took 1.9 acres of the plaintiffs' land for the widening and relocation and an additional .5 acre for the slopes of the cuts and fills.

As so frequently happens in cases of this nature, there was a wide disparity in the opinion evidence adduced by the respective parties as to the damages due to the taking. The husband plaintiff gave $15,000 as his opinion of the damages and an expert witness called by him and his wife placed the damages at $11,750. On the other hand, the Commonwealth's sole expert witness testified that the damages were $2,500.

The appellant appears to conceive that, since the jury's determination of the damages was for an amount between the estimates as testified to by the witnesses for the respective sides, the verdict was the product of conflicting testimony and could not, therefore, be interfered with by the trial court. The cases which the appellant...