McElheny v. McKeesport & Duquesne Bridge Co.

Opinion by

Mr. Justice McCollum,

In 1889 the appellee appropriated about one third of an acre of appellant’s land for an approach to its bridge across the Monongahela river from a point at the foot of Riverton street in the borough of McKeesport to a point in Mifflin township opposite to said Riverton street. The land so appropriated was in Mifflin township, fifty feet in width, and extended from low water mark on the river to the right of way of the Pittsburgh, Virginia & Charleston Railroad. The damage, occasioned by this appropriation, was duly ascertained and paid. In fixing the amount of the damages, the advantages to appellant’s property from the location and construction of the bridge were shown and properly considered. When the work of constructing the bridge was well advanced, it was agreed between the appellee and the railroad company that, in order to avoid the inconvenience and danger of a crossing at grade, the bridge and approach on the Mifflin side should be raised to a sufficient height to allow an elevated crossing; and to carry out this agreement an extension of the Mifflin approach and an appropriation of more land of the appellants became necessary. This litigation comes from the second or further appropriation of the appellant’s land to complete the approach in accordance with the plan for the elevation and extension of it, and the principal question to be determined is whether the benefits resulting to the appellant’s property from the construction of the bridge may be considered in the adjustment of the damages caused by the change in the approach.

The appellant’s contention is that in ascertaining such damages the only benefits or advantages to be regarded are those created by the change which necessitated the second appropriation, and that in this case the rule is the same as it would be if the bridge and its approaches had been completed according to the original plan, and opened to travel before the change in the Mifflin approach was made. We think this contention is sound because the special benefits to appellant’s land from the construction of the bridge and its approaches, as originally planned, were settled for in the proceedings for the assessment of the damages caused by the first appropriation. The appellants having once paid for these benefits in reduction of their claim for damages cannot be charged with them again. The lands appropriated are contiguous and parts of the same tract. The benefits which this tract would have received by the completion of the bridge and its approaches in conformity with the first plan were allowed in the former proceeding, and are, like the damages recovered in it, res judicata. It follows that in this case the inquiry should have been limited to the damages sustained anid the benefits conferred by the change in the Mifflin approach and the appropriation made necessary by such change. The appellant’s third, fourth, fifth and sixth points fairly presented this view of the case, but the answers to them were unsatisfactory and misleading. It is true the learned court below affirmed the points, but the affirmance of each was immediately connected with an explanation which amounted to a substantial denial of the point. The fault discernible in the answers is that they allowed the jury to take into consideration the benefits conferred by the bridge, instead of limiting the inquiry to the benefits resulting from the elevation and extension of the Mifflin approach to it. This was manifest error which was not cured by the general charge. For the reasons already stated evidence of benefits arising from the construction of the bridge was inadmissible. The first, second, third, fourth, sixth, seventh, eighth and eleventh specifications are sustained.

As the appellants have not printed Wylie’s testimony in chief we cannot intelligently pass upon the objections to the questions complained of on his cross-examination. The legitimacy of the latter depends on the nature and character of the former. It does not follow because the answers to these questions would not be admissible as independent evidence on the subject of damages that the cross-examination was improper. The questions and answers may have been pertinent in testing the intelligence and integrity of the witness in making the estimates to which he had testified in chief. The fifth specification is overruled.

We cannot say that Joseph Martin was incompetent to testify to the market value of the property. He had known it ten or fifteen years, and knew of sales of like property in that neighborhood. It is not the subject-matter of his testimony, but the ruling of the court that he was qualified to give it, which is complained of, and as we are of opinion that he was competent we overrule the ninth and tenth specifications.

The excerpt from the charge which constitutes the error complained of in the twelfth specification is justly subject to the same criticism as the answers to the points already considered, and for that reason the specification is sustained.

Judgment reversed and venire facias de novo awarded.