Harrisburg, Carlisle & Chambersburg Turnpike Road Co. v. Cumberland County , 225 Pa. 467 ( 1909 )

Per Curiam,

This appeal is from a judgment obtained in the common pleas in proceedings under the Act of June 2, 1887, P. L. 306, to assess damages for the condemnation of a part of the plaintiff's turnpike road. The main argument for the appellant is intended to show error on the part of the court in refusing to grant a new trial because of an alleged excessive verdict. The power conferred by the Act of May 20, 1891, P. L. 101, was first exercised in Smith v. Times Publishing Co., 178 Pa. 481, decided six years after the passage of the act, and in which it was said: “ It is a new power, a wide departure from the policy of centuries in regard to appellate courts, and so clearly exceptional in character that no case has been presented until now in which we have felt called upon to exercise it.” It has not since been exercised and it has been repeatedly said, in a line of cases extending from Wolf v. The Traction Co., 181 Pa. 399, to Murtland v. English, 214 Pa. 325, that it will not be exercised except in extreme cases where the injustice of allowing an excessive verdict to stand is so manifest as to show a clear abuse of discretion by the court in which the case was tried. The verdict rendered was not without support in the testimony, but the learned trial judge, upon a review of the whole case, was of opinion that it should be reduced and ordered that a new trial be granted unless a remittitur should be filed by the plaintiff. In this we find not an abuse but a wise exercise of discretion by the court.

The nature of the property taken and the effect of a partial taking on the remaining portion of the road made the assessment of damages exceptionally difficult; but we find no error in the rulings of the court on the admission of testimony or in the instructions to the jury. In ascertaining the value of the property taken, the physical condition of the roadbed, the net amount of tolls received or that would be received under a better management, and the market value of the stock were all elements to be considered: Mifflin Bridge Co. v. Juniata County, 144 Pa. 365; West Chester, etc., Plank Road Co. v. Chester County, 182 Pa. 40. It was also competent for the plaintiff to show the value which the road might have for use by an electric railway company if there was a reasonable prospect of such use. The owner of property taken under condemnation proceedings is entitled to have the value of the property considered for any use to which it may be adapted: Cox v. Phila., etc., R. R. Co., 215 Pa. 506.

The judgment is affirmed.