Larkin v. Scranton City

Supreme Court of Pennsylvania July 11, 1894

Larkin v. Scranton City, 162 Pa. 289 (Pa. 1894)

29 A. 910; 1894 Pa. LEXIS 979

Collum, Dean, Fell, Mitchell, Williams

Opinion of the Court

Opinion by

Mr. Justice Mitchell,

The statement in the charge that “ the strip of land is taken absolutely from Mr. Larkin ; the title to it is taken from him and vested in the city of Scranton by virtue of this proceeding, for all time,” was probably inadvertent, but it was unfor*293túnate, foi', although it may not have substantially affected the amount of damages, yet we cannot say that it did not do so. It bore directly on that subject, and was clear technical error: Wilson v. Scranton, 141 Pa. 621.

The charge was also uufortunate in the expression in reference to the stone building, that the jury “ have also the right to consider the condition of the property in the rear of that building in determining what it would require to place it in such convenient position as it was before, and that consideration may be entirely independent of the question of the value of the property which the city admits it has taken for public purposes.” The last clause of this sentence might easily lead the jury to suppose that they should assess the cost of replacing the building as a separate and independent element of the damages. It was an item for consideration, but only as a part of and in clear and complete subordination to the general criterion, the difference in market value between the plaintiff’s whole property before the taking, and what remained to him after it. The distinction, and the proper use of such incidental evidence, are fully explained in Dawson v. Pittsburg, 159 Pa. 317.

The objection to the jurisdiction raised in the third assignment of error need not be considered. It comes too íate. The city had notice of the appointment of the viewers, of their report, and of the plaintiff’s appeal, and when the issue was framed on the appeal, the city pleaded to it without objection. As in Wilson v. Scranton, 141 Pa. 621, and Ogden v. Philadelphia, 143 Pa. 430, the subject-matter was one within the general jurisdiction of the court, and the parties by their conduct had waived the right to object that they were not properly before it.

Judgment reversed and venire de novo awarded.

Reference

Full Case Name: Michael Larkin v. Scranton City
Cited By: 7 cases
Status: Published
Syllabus: Municipalities — Widening street — Eminent domain — Title—Charge of court — Measure of damages — Replacing building. In an action to recover damages for land taken for the widening of a street, it is error to charge that the land is taken absolutely, that the title is taken from the owner and vested in the city for all time. In such a case, the measure of damage is the difference in market value between the plaintiff’s whole property before the taking and what remains to him after it. In this connection the jury have the right to consider the cost of replacing a building a portion of which is cut away; though they can only consider this as a part of and in clear and complete subordination to the general criterion above stated. To charge that such consideration may be entirely independent of the question of the value of the property taken, is error. Proceedings for appointment of viewers, etc. — Irregularities—Waiver— Jurisdiction. A city had notice of the appointment of viewers for the assessment of damages for the widening of a Street, of their report, and of the plaintiff’s appeal; and when the issue was framed on the appeal, pleaded to it without objection. Reid that, the subject-matter being one within the general jurisdiction of the court, the parties by their conduct had waived the right to object that the5' were not properly before it, and the city could not, on the trial of the issue, raise the question of jurisdiction.