Werner v. Com., Dept. of Highways

• Citation: 432 Pa. 280,247 A.2d 444
• Parties: Harry A. WERNER and Astrid M. Werner, husband and wife, and Mahoning Valley Sand Company v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF HIGHWAYS, Appellant.
• Decision Date: 12 November 1968
• Court: United States State Supreme Court of Pennsylvania

Page 444

247 A.2d 444

432 Pa. 280

Harry A. WERNER and Astrid M. Werner, husband and wife, and Mahoning Valley Sand Company v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF HIGHWAYS, Appellant.

Supreme Court of Pennsylvania.

Nov. 12, 1968.

George R. Specter, Robert W. Cunliffe, John R. Rezzolla, Asst. Attys. Gen., William C. Sennett, Atty. Gen., Harrisburg, for appellant.

Martin E. Cusick, Donald R. McKay, Cusick, Madden, Joyce & McKay, Sharon, Errol Fullerton, New Castle, for appellees.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

JONES, Justice.

This is an appeal by the Commonwealth from a judgment entered on a jury verdict awarding appellees, Harry A. and Astrid M. Werner and Mahoning Valley Sand Company a total of $312,333.33 damages for the condemnation of 21.1308 acres.

On February 27, 1957, the Commonwealth, acting through the Department of Highways, condemned for road construction purposes 21.1308 acres of a 266.32 acre tract owned by appellees, Werners. The Werners had acquired the property in 1950 and, at the time of the condemnation, were using the land for farming purposes subject, however, to a lease agreement giving appellee-Mahoning the right to remove underlying sand and gravel. The parties stipulated that the lease made Mahoning the fee owner of the minerals and that 1,492,670 tons of sand and gravel had been removed between the effective date of the lease, May 16, 1955, and March of 1965.

Immediately to the east of the Werner property and separated from it by old traffic Route 1 is a tract of land owned in fee by Mahoning. On this tract Mahoning built a sand and gravel processing plant to process the gravel quarried from the Werner tract. The gravel was transported from the Werner tract to the processing plant by means of a hopper and conveyor belt.

In 1963 the Board of Viewers awarded the appellees $130,000. The Commonwealth appealed in order to determine whether the unity of use or the integrated use doctrine was applicable. The lower court held that the integrated use doctrine should be employed. This Court quashed an appeal from that ruling on the grounds that it constituted an appeal from an interlocutory decree. Werner v. Commonwealth, 416 Pa. 356, 206 A.2d 317 (1965).

At the trial in the Court of Common Pleas of Lawrence County the jury returned a verdict in favor of the appellees in the amount of $200,000 plus detention damages of $112,333.33, or a total of $312,333.33. Motions for a new trial were denied and judgment entered on the verdict.

The Commonwealth advances five arguments as to why this Court should reverse the judgment below. We will consider each contention in turn.

I

The Commonwealth contends that the trial court erred in allowing one of the appellees' expert witnesses, a civil engineer, to testify that 1,292,846 tons of sand and gravel would be lost by reason of the condemnation. (Record, volume 1, at 118a).

The basic principles of condemnation are not in dispute. First, the general rule is that the proper measure of damage for lands taken under the power of eminent domain is the difference between the market value of the land before the exercise of the power and as unaffected by it and the market value immediately after the appropriation and as affected by it. Gilleland v. New York State Natural Gas Corp., 399 Pa. 181, 184, 159 A.2d 673 (1960); Brown v. Commonwealth, 399 Pa. 156, 158, 159 A.2d 881 (1960); Spiwak v. Allegheny County, 366 Pa. 145, 147, 77 A.2d 97 (1950); Westinghouse Air Brake Co. v. City of Pittsburgh, 316 Pa. 372, 375, 176 A. 13 (1934); Reading & Pottsville R.R. Co. v. Balthaser, 126 Pa. 1, 11, 17 A. 518 (1889); Pittsburgh & Western R.R. Co. v. Patterson, 107 Pa. 461, 464 (1884). Second, it is permissible for the condemnee to introduce evidence of particular items lost through the condemnation. Gilleland, supra, 399 Pa. at 185, 159 A.2d 673; Patterson, supra, 107 Pa. at 464; Price v. Commonwealth, 205 Pa.Super. 142, 145, 208 A.2d 23 (1965). The condemnee may not, however introduce evidence of the Value of the particular items lost through condemnation but merely the fact that these items were lost. Hasenflu v. Commonwealth, 406 Pa. 631, 639, 179 A.2d 216 (1962); Gilleland, supra, 399 Pa. at 185, 159 A.2d 673; Brown, supra, 399 Pa. at 159, 159 A.2d 881; Sgarlat Estate v. Commonwealth, 398 Pa. 406, 413, 158 A.2d 541, cert. denied, 364 U.S. 817, 81 S.Ct. 49, 5 L.Ed.2d 48 (1960); Peterson v. Pittsburgh Public Parking Authority, 383 Pa. 383, 389, 119 A.2d 79 (1955); Reading & Pottsville R.R. Co. v. Balthaser, 119 Pa. 472, 483, 13 A. 294 (1888); Westinghouse Air Brake, supra, 316 Pa. at 375, 176 A. 13; Patterson, supra, 107 Pa. at 464. Third, as far as mineral deposits are concerned, the condemnee may not introduce evidence of the number of tons of minerals lost and then multiply that number by some dollar figure such as the market price or the royalty payment. Sgarlat, supra, 398 Pa. at 413--414, 158 A.2d 541; Reading & Pottsville R.R. Co. v. Balthaser, 126 Pa. 1, 10, 17 A. 518 (1889); Reading & Pottsville R.R. Co. v. Balthaser, 119 Pa. 472, 483, 13 A. 294 (1888); Searle v. Lackawanna & Bloomsburg R.R. Co., 33 Pa. 57, 64 (1859); 4 Nichols, Eminent Domain, § 13.22, at 412 (1962); Annot., 156 A.L.R. 1416 (1945). The reason for this latter rule was well stated in the Searle case: 'Though we might have the most accurate calculation of the quantity of coal in the land, yet, without knowing exactly the expense of bringing it to the surface and carrying it to market and the amount likely to be lost in mining and conveying, and the times in which it would be brought out, and the market prices at those times, the quantity would not help us to value the land.' Searle, supra, at 64.

The Commonwealth would have us include a fourth rule: not only may the condemnee not introduce evidence of the number of tons of minerals lost and then multiply that number by a dollar figure, he may not introduce evidence of the number of tons for any reason. The Commonwealth maintains that this is already the law in Pennsylvania and relies on four cases: Searle, Balthaser, Sgarlat and Williams v. Commonwealth, Department of Highways, 423 Pa. 219, 223 A.2d 865 (1966). A close reading of these four cases reveals, however, that in each instance, the condemnee multiplied the number of tons by a dollar figure. Therefore, none of these cases answers the precise question before us--whether the condemnee can introduce evidence of the number of tons if he does not multiply that figure by some dollar amount. Our research has not uncovered any case in this Commonwealth dealing with this precise question. ¹

The question has been decided in numerous other states, however. All of the cases cited to us in the briefs of both parties have held that such evidence is admissible. ² Sound logic dictates this result. The jury must place itself in the position of a potential purchaser of the tract in question. Snitzer, Pennsylvania Eminent Domain, § 603 (1965). Such a purchaser would certainly consider the existence of mineral deposits beneath the surface in arriving at a purchase price. The Commonwealth does not argue with this proposition. In effect, what the Commonwealth maintains is that this potential buyer should not be allowed to know whether there are five tons or 500 tons of sand and gravel below the surface. It is unrealistic to require a potential purchaser, or a jury, to hazard a guess as to the value of a tract of land without knowing the extent of a valuable mineral deposit situated below the surface of the land. If the jury is to make an educated determination of the value of a tract of land, it must know what is below the ground as well as what is on the surface.

We are not quarreling with the time-honored rule that the jury may not multiply the number of tons by some dollar figure in order to value the minerals separately. This is error for two reasons. First, the minerals may not be valued separately apart from the remainder of the tract. Second, it is impossible to determine how much a ton of sand and gravel will be worth until it has been removed from the earth and processed for market. All we are saying is that a tract of land containing 500 tons of sand and gravel is much more valuable than a tract of land with five tons and the jury has the right to know more than that there is a sand and gravel deposit of unknown quantity below the surface.

The Commonwealth argues, however, that even if this argument is sound, the damage has already been done in this case because a dollar figure had been introduced into evidence which the jury could have used to multiply against the number of tons. The lease agreement between the Werners and Mahoning--Introduced into evidence without objection by the Commonwealth--provided for a fixed royalty payment per ton. The Commonwealth does not argue that the lease should not have been admitted; instead it maintains that the jury now had both the number of tons and a dollar figure and that, in effect, this violated the long-standing rule against the introduction of these two items of evidence in combination.

Merely because a dollar figure is admissible for some other purpose is no reason for excluding evidence as to the number of tons. The solution to this problem is a cautionary charge to the jury. The court below instructed the jury that they were not to place a separate value on the minerals in place but were to compute one value for the entire tract and also instructed the jury that they were not to use information gathered from the lease in order to value the minerals lost. Although the judge did not specifically tell the jury that they were not to multiply the number of tons by some dollar figure, his charge was sufficiently clear to convey this meaning. ³ In short, the court below did not err in permitting into evidence the number of tons of sand and gravel lost when no dollar figure...