Cummings v. City of Williamsport , 1877 Pa. LEXIS 206 ( 1877 )

Mr. Justice Woodward

delivered the opinion of the court,

Erom the report of the viewers appointed to adjust the damages and contributions payable and chargeable to the owners of land along the extension of Packer street, in the city of Williamsport, A. Boyd Cummings, the plaintiff below and here, was the only appellant. When the issue was directed by the Court of Common Pleas, there was no other controversy than that between the plaintiff and the city. The second section of the supplementary borough Act of the 22d of April 1856, made every report of viewers to assess damages and contributions final and conclusive on all parties after approval and confirmation by the proper Court of Quarter Sessions. The only control over the action- of the viewers consisted in the power of the court to modify the report “ on the hearing of such parties as should choose to contest the same.” The Act of the 15th of January 1866, incorporating the city of Williamsport, made no change in the law regulating the opening and extension of the highways of the municipality. The tenth section preserved all unsupplied statutes, ordinances, by laws, rules and regulations of the borough in full force. And the eleventh section transferred all the powers which had been exercised by the burgess of the old borough to the mayor of the new city. The Act of the 13th of June 1874, gave to any party to a proceeding to assess damages against any corporation or individual invested with the privilege of taking private property for public use, the right to appeal to the Court of Common Pleas of the proper county. Under the Act of 1856, the record made up in the Quarter Sessions was conclusive on all the parties interested in the Packer street extension, who acquiesced in the report of the viewers and the judgment of confirmation. No question remained open between the individual defendants and the city, and the plaintiff had no controversy with them. There was but a single issue — that in which the title of the plaintiff to damages was involved. The rights of the individual defendants had been adjusted by the report of the viewers and the decree of the Quarter Sessions, and their joinder as parties to the issue made a confused and incongruous record, and necessarily produced on the trial embarrassing and awkward consequences. The question submitted in terms to the jury was : “ What amount of damages, if any, is Mr. Cummings entitled to from either of these defendants ?” The plaintiff’s right to appeal under the Act of 1874, was against the city of Williamsport as “a corporation invested with the privilege of taking private property for public use.” The other parties possessed no such privilege. They were mere owners of property affected by the opening of the street. Between them and the plaintiff there was no privity, and against them he could assert no common law, statutory or contract claim. In essential results, the circumstances of this case are identical with those developed in the Matter of the Opening of Park Avenue, in 2 Norris 167, and the principles settled there are directly applicable here. The joinder of the individual defendants with the city would be ground for reversal if it could be gathered from the paper-books that the question had been duly raised. The order for a feigned issue was stricken off on the plaintiff’s application, and he apparently acquiesced in the order for the real issue. At least, although that order is made the subject of the first assignment of error, there is no record of any objection made to it when it was filed, and no complaint was made on behalf of the defendants themselves. The irregularity is beyond present reach.

But while the form of the issue embraced unnecessary parties, the actual question remained unchanged. The plaintiff’s land had been appropriated for the highway, and he claimed damages for the injury alleged to have been sustained. In the course of the trial, the defendants offered to prove by Joseph Gilmore that “ after the plaintiff had plotted his land and located on said plot the extension of Packer street at the point where the same is now located, and before the witness had plotted his on the north side of and adjoining plaintiff’s land, he, the witness, had a conversation with the plaintiff in reference to the opening of the street, and the plaintiff agreed that if he, Gilmore, would not press the opening of the street running east and west, he, the plaintiff, would open this street at his own expense; and that he, Gilmore, accepted the proposition, plotted his land accordingly, caused certain buildings to be erected on the line of this street, and desisted from urging the opening of the street running east and west.” The third error has been assigned to the admission of this offer. Was it relevant? The agreement would have been undoubtedly binding in a controversy between the plaintiff and the witness. But it does not follow that the evidence, standing alone, would work an estoppel in favor of the city. It was not proposed to couple it with any proof that any act had been done by the municipal authorities in pursuance of the arrangement, or that it had even been known to them. Indeed, -the inapplicability of the offer to the real issue pending was distinctly ruled by the court below. The jury were charged on this point in these terms: “ If you believe from all this testimony that Mr. Gilmore was induced to lay out his lots in consequence of that arrangement, we think it a proper subject of consideration as between Mr. Cummings and these defendants when you come to fix the amount, the proportion of these damages that they should pay. I do not myself attach much importance to this evidence, and think it only applicable to that question. I do not think it is at all applicable to the question of damages to be paid by the city, because I do not see that Mr. Cummings waived any right that he might have to claim damages from the city by that interview with Gilmore.” If the settlement of the equities between the city and the individual defendants could have been projected into the contest in such a way as to make them liable to the plaintiff for any damages he might recover, the fact that Gilmore was one of the defendants would perhaps have made the evidence competent. But it had no bearing on the question between the parties actually litigant. Mr. Justice Burnside said in Bratton v.- Mitchell, 3 Barr 44, that “ In Pennsylvania it has become a great evil in the administration of justice, the-offering and frequently giving irrelevant evidence. The object is often to raise a false issue before the jury. The evidence should be confined to the question trying; then the court and jury would not be perplexed and embarrassed with irrelevant matter.” Facts which of themselves can have no legitimate operation cannot be received in evidence, because the jury might possibly infer other facts which, in connection with them, would support the issue: Weidler v. The Farmers’ Bank of Lancaster, 11 S. & R. 134. Evidence is not admissible to excite prejudices in the minds of a jury, or merely to allay those which it is supposed they may possibly entertain: Hill v. Meyers, 7 Wright 170. Here the direct tendency of the evidence was to lead the minds of the jury into an irrelevant inquiry, and the offer should have been rejected.

As the whole evidence of Mr. Gilmore was incompetent, discussion of the point raised by the sixth and seventh assignments of error would be superfluous. But it may be said, that anjnadvertent statement to the jury, that an agreement on the part of Mr. Cummings to open the street at his own expense, had been testified to, when no testimony as to such an agreement had been given, would be capable of affecting the interests of the plaintiff in a most damaging and disastrous way.

In The Shenango and Allegheny Railroad Co. v. Braham, 29 P. F. Smith 447, the judgment was reversed because the jury had been instructed to regard only such advantages and disadvantages from the road of the defendants as resulted to the plaintiff as a farmer, and to his land as a farm. In entering the judgment of this court, it was held that everything that gives intrinsic value to land is a proper consideration in estimating its market value. The rule by which the jury in this case were instructed to ascertain the plaintiffs’ damages, was entirely accurate, and the fourth and fifth assignments of error, in which that instruction is complained of, are unsustained.

Judgment reversed, and venire facias de novo awarded.