Dawson v. Pittsburgh , 159 Pa. 317 ( 1893 )

Opinion by

Mb.. Justice Mitchell,

The main contention of appellants that the act of May 16, 1891, P. L. 71, introduced a new rule for the estimation and measure of damages in the opening or change of grade of streets, cannot be sustained. Before that act the practice was for viewers to report the result of their findings on the two matters of damages and benefits, as a single sum, either damages or benefit, but not both. Under the act of 1891 they report both matters separately, but the net result is the same. The only effect of the change is to give the court primarily and the parties finally more information as to the steps by which the result was reached, and better opportunity to have it examined and reviewed. __

How much of the cost of a local change whieh is also a general improvement, should be justly charged to those in the immediate vicinity, and how much to the public at large, and what shall be the legal definition and limits of such vicinity are questions of great practical difficulty. If all cases were as clear and uncomplicated as the examples put by appellant’s counsel, the rule contended for by him, as the intention of the act of 1891, would be a just and desirable one, but in practice the difficulties are numerous and the danger of injustice and abuse great. Viewers, as all experience shows, have a strong tendency to find benefits sufficient to cover the whole cost of the improvement, and if, in the search for properties enough for that purpose, they may first find the cost and damages and then take up the assessment of benefits as a separate and distinct matter, it is safe to prophesy that such properties will always be found. An extension of the doctrine of special local benefits, of such doubtful constitutionality and not at all doubtful inexpediency, will not be lightly assumed. The settled law was that each property owner concerned was entitled to have his case as a whole, both as to damages and benefits, separatety and specially considered, and that, in such consideration, the general increase in value from the development of the neighborhood, was not such a local and special advantage to him as to be taken into account as part of the benefit to be assessed upon him. We fail to find any intent in the act of 1891 to change these rules.

In the present case the finding of the viewers as to benefits was not appealed from. Whether such an appeal, from part only of -the award, is authorized by the statute we express no opinion about. Being accepted by both parties, that element of the case was conclusively settled. Whether the viewers’ report was distinctíy put in evidence or not, it seems to have been referred to 'by both parties, as part of the case, and the learned judge was therefore quite justified in calling the jury’s attention to the assessment of fourteen hundred dollars on plaintiff, for benefits, and telling them that unless the market value of her property was enhanced to that amount she should have damages. But even if it had been technically error, the appellant could not justly complain of it. The greater the value of her property before the new grade, the greater her damages necessarily were, and the 'judge directed the jury to add these fourteen hundred dollars of assessed benefits to the market value before the improvement, and then compare it with the market value afterwards. This was manifestly favorable to the plaintiff.

We are however obliged to hold that the learned judge drew the line too strictly upon the appellant’s witnesses as to their testimony on the injury to the property. It is true that the measure of damages is the difference between market value before and after the improvement. That is the test by which the jury must be governed, and to which each witness must be brought as a final result of his testimony. But he cannot be confined to a bald answer to that one question. If he could the jury would have to arrive at a verdict by a mere count of numbers and amounts. The value of an expert’s opinion may be fortified on the one hand or reduced on the other by an examination as to his general experience, his means of knowledge in the particular case, and the facts and reasons on which he bases his conclusion. It is matter of opinion at best, and the lowest grade of evidence that ever comes into a court of justice. It is permissible only because, bad as it is, there is nothing better attainable. . Opinions of this as of other kinds are. apt to differ, and their value is not always in proportion to the confidence with which they are advanced. It is proper therefore that the jury should have all the aids possible in enabling them to judge of the weight to which any particular opinion is entitled. To assist them to a right conclusion matters are often admissible which are not in themselves separate and independent grounds of damage. Thus in Railway Co. v. McCloskey, 110 Pa. 436, it was said by our late brother Clark that “ The cost of fencing cannot be recovered as a distinct item of damages, but the question how much the burden of fencing will detract from the value of the land, may be considered by the jury.” And in Harris v. R. R. Co., 141 Pa. 242, it was said, “in estimating the value of the lot before the taking, its possible and probable uses are important elements, and may be shown by the opinions of experts. But the details of improvements, the cost, probable rent afterwards, etc., require knowledge of the subject to insure the proper weight to be given, and the' inferences to be drawn from them. (And it might have been added as it was in Ry. Co. v. McCloskey, that they &,re speculative in character.) Hence they are not admissible as independent facts for the jury. . . . But such details ought to enter into the view of the expert in'forming his judgment, and whether they have done so is a legitimate subject of cross-examination,” or of examination in chief.

The case of Chambers v. So. Chester, 140 Pa. 510, is not at all in conflict with these views. In that case, which was closely analogous in its facts to this, the plaintiff offered to prove the cost of filling up the lot to a level with the street at its new grade, but the offer was excluded by the court “because it does not appear that it was a level lot formerly,” and further the court said, “you may show that the house had to be raised, but I don’t think the cost will be evidence,” i. e. of a separate item of damage. That this was the meaning of the court is clear from the charge further on where it is said, “ you may consider these several matters as elements in the cause but you are not to award damages for the building of walls or the filling up of lots as special damages. You are not to take up these separate items and award separate damages for them, and add them together, and say that is the damage suffered. The law has given another rule,” etc. This was quoted and approved in the opinion of this court.

, In the present ease the learned judge applied the rule that limits the jury to the estimate of the difference in market value, so stringently to the witnesses that some at least of them were prevented from testifying on matters that were relevant and material to the main issue. No doubt these rulings were largely induced by the persistency of counsel in trying the case on the theory that the act of 1891 had introduced a new rule, and by the difficult}* of getting witnesses under his examination to conform to the true rule as laid down by the court. But however produced, they deprived the plaintiff of some evidence that she was entitled to put before the jury. Thus the facts that the new grade left the plaintiff’s house in a depression, that one of the ways in which that disadvantage could be remedied would be by raising the house and filling in the ground, and that that process would not only be expensive but would also entail the loss of valuable trees and shrubbery, all these matters and in a general way the cost of them, were competent evidence, not indeed as in themselves items of damage, for as the learned judge justly said there are cases where property is entirely destroyed for its former use and yet its market value is increased, but as elements bearing on the difference of such market value. Moreover testimony as to injury to the property was competent, though the witness, as in the case of Mawhinney, sixth assignment of error, could not state the figures at which property in that neighborhood was held. A man may know the effect on the relative value without being able to fix the actual market price. Such evidence is admissible at least in corroboration of others who may give definite figures.

It was also error to exclude the report of the viewers in contradiction of Woodwell. It showed that he as a viewer had signed a report making an entirely different estimate of the effect of the improvement on plaintiff’s land, from that to which he had testified at the trial. It was competent for the plaintiff to show this, and to have the benefit of it in reduction of the weight of Woodwell’s opinion with the jury, even though in so doing he might introduce evidence not admissible for other purposes.

Judgment reversed and venire de novo awarded.