Patton v. City of Philadelphia , 38 W.N.C. 147 ( 1896 )

Opinion by

Mr. Justice Mitchell,

The learned judge at the trial gave the jury the correct rule for the estimation of damages, the difference between the value of the property before the taking and the value of what was left afterwards. But the evidence, especially on the latter point, was conflicting, the plaintiff’s witnesses testifying that the value was diminished and the city’s witnesses that it was increased. The jury had therefore to decide this question and they should have had all the information obtainable to enable them to form a correct judgment. Plaintiff claimed for land taken and prima inicie was entitled to compensation from that fact alone. But the city argued, true we have taken part of your land, but we have given you a street where you had no outlet before, and the land you have left is therefore worth more than the whole tract was before. To this the owner rejoined, so far as my land is concerned your street is up in the air, and it will cost me more to make use of it than the value of such use when made. This was the dispute the jury had to pass upon, and the value of the street to the remaining lot and the cost of making it available, were necessary elements in reaching a deci- ■ sion.’ It was proper that they should have accurate information on the question of such cost, rather than to be allowed to guess at it as they must otherwise do. It is always competent for the owner to show what uses his property was capable of and how such uses have been interfered with, just, as on the other hand the city may show what new uses or advantages have been opened to the remainder by the city’s action in taking a part. Evidence on these points is admissible, not as independent items of claim or counter-advantage, but as necessary elements in determining the relative values of the whole tract and of the remainder after the taking. As these elements have necessarily to be considered by the jury it is proper they should have the assistance of exact information to guide them.

Where a street is opened at a grade that leaves the adjoining property in a depression, the expense of putting the property in condition to make use of the street was held in Dawson v. Pittsburg, 159 Pa. 317, to be one of the elements of damage ; and it was proper to treat it as a part of the case for damages for the taking: Righter v. Philadelphia, 161 Pa. 73.

The offers of evidence therefore, as to the amount and cost of filling required to make the lot conform or be available for use at the new grade were competent and should have been admitted, not as independent items of damage, but as elements, to be taken into consideration by the jury together with the other circumstances, in determining the market value of the property before and after taking of part of it for the street.

Judgment reversed and venire de novo awarded.