Aswell v. City of Scranton
Aswell v. City of Scranton
Opinion of the Court
Opinion by
The several assignments of error in this case are merely different methods of presenting the same general question. It is raised upon the following facts. The plaintiff is the owner of a lot at the intersection of Tenth and Oxford streets in the city of Scranton. It was at the bottom of a deep depression in the surface and was reached at some inconvenience and danger on account of the steepness of the descent, and the irregularity of surface of the streets by which it was reached. There were two dwellings and a stable upon the lot, and the plaintiff herself resided on it. In 1891 an ordinance was passed fixing a uniform grade for Tenth street between Luzerne and Washington streets. Oxford street was about midway between these points. When the street was put upon the grade provided for in the ordinance, its surface was raised some eight or ten feet at the crossing of Oxford street, and this made it desirable for the plaintiff to raise her house and to fill some portion of her lot. Thjs proceeding was entered upon to ascertain what amount, if any, should be paid by the city to the plaintiff as damages suffered by reason of the change of the grade of Tenth street. The learned judge before whom the trial was had instructed the jury that the measure of the plaintiff’s damages was the difference between the market or selling value of her lot before the improvement was made and its value as affected by the improvement. In ascertaining this difference, he told them that they were to consider any direct benefit or advantage conferred on the property by the grading of the street; and any disadvantage or injury inflicted upon it by the alteration of the grade. This was entirely correct.
The question now raised is over his application of these rules to the facts of this case. To guide the jury in the estimation of the value of the property, as affected by the improvement, he said to them, “ If this testimony however on the part of the city is based upon the general appreciation of property in that
The judgment is reversed and a venire facias de novo awarded.
Reference
- Full Case Name
- Fanny Aswell v. The City of Scranton
- Cited By
- 8 cases
- Status
- Published
- Syllabus
- Eoad law — Streets—Change of grade — Damages. In an action against a city to recover damages for a change of grade of a street where it appears that the improvement affected only two squares, and did not appreciably increase the value of real estate in the general region of the city in which the street was located, it is error for the court to charge the jury not to take into consideration a general appreciation of property in the neighborhood, inasmuch as such an instruction opens the way to the jury to reach the improper conclusion that such advantage derived from an improvement, to justify the jury in considering it, must be something unlike and above the advantages derived by any other person. If every property along a street is made more accessible, then every property along the street is specially benefited, and the amount of that benefit should be set ofE against the damages, if any, inflicted by the improvement as made. It is the actual loss suffered for which the lot owner should be compensated. That loss may be measured with exact justice by the depreciation in value of his property resulting from the improvement complained of. If his property is injured that others may be benefited, his loss should be made good; but if the grading or other improvement increases the value of his property as much as or more than it may cost him to repair, or to readjust himself to the changed state of things, he is not a loser, and he ought not to recover.