Gamble v. Philadelphia ( 1894 )

Opinion by

Mr. Justice Gbeen,

It seems to us this case was tried in accordance with our rulings in Brooklyn Street, 118 Pa. 640, and Whitaker v. Phœnixville Boro., 141 Pa. 327. The learned court below very carefully instructed the jury as to the right of the plaintiff to have damages under those decisions. Undoubtedly the plaintiff’s right as to the use of the ground lying in the bed of Seymour street, was affected by his conveyances to Mintzer and Royal. Certainly whenever Seymour street was opened the plaintiff could do nothing to obstruct the use of that street by his grantees. Beyond all question they had a right of free passage over the street, and it could not possibly be occupied by buildings, either as against the city or the plaintiff’s grantees. It was of no use to theorize about the value of the ground as building lots, since it could not lawfully be used for any such purpose. The evidence on that subject was received, but it could not be permitted to constitute the basis of an inflated claim for damages upon a theory which had no lawful existence. The learned court did leave to the jury the question, what was the value of the land taken subject to the right of way of the plaintiff’s grantees, and also to the right of the city to open the street. On this subject there was considerable conflict of testimony, the defendant’s witnesses testifying that in such a situation the land had no value whatever, some of the plaintiff’s witnesses testifying that it was worth about two thousand dollars notwithstanding these restraints upon the plaintiff’s rights in the land, and others admitting that these restraints would impair its value materially. So far as Tacoma street is concerned the same consideration would be applicable, and therefore we do not think there was any error in the views expressed by the learned court below on that subject. The opening of these two streets occurred so nearly together that there could be no appreciable effect upon the measure of damages whether Tacoma street was opened a little before or a little after Seymour street was opened; and in any event we do not see how this piece of ground, which would not admit of any buildings being erected upon it, could have any additional value imparted to it by the opening of a street which simply led up to it. Had the ground of the plaintiff been capable of use for building lots, of course the case would have been different. But the court did leave to the jury to say what was the plaintiff’s land worth in view of all the circumstances, and the jury said it was worth nothing. The assignments of error are dismissed.

Judgment affirmed.