Preston Retreat v. City of Philadelphia
Preston Retreat v. City of Philadelphia
Opinion of the Court
Opinion by
The Preston Retreat, plaintiff below and here appellee, is the owner of a tract of land in the Fortieth Ward of the City of Philadelphia containing thirteen acres. In opening Willows avenue to a junction with Fifty-third street, and extending the latter street northward, the city has appropriated of this land about an acre and one-half at the extreme northwesterly limit of the tract, where the natural surface of the land is lowest. In order that the grade of this newly opened street might accord with that of other streets in the neighborhood, the city has constructed the street at a very considerable elevation above the natural surface of the ground. It is this feature of the case which excited controversy in the proceeding to assess plaintiff’s damages in the court below, and it is the rulings of the court with respect to it that are alone assigned as error. On the trial plaintiff offered to show that as originally plotted in 1871 the grade corresponded very closely to the natural surface of the ground, and that this plan had remained unchanged until 1895 when the present grade was adopted. The offer was properly rejected as wholly irrelevant to the issue being tried; nevertheless in the examination of the witnesses called by plaintiff, and principally during their cross-examination, repeated reference was made to this earlier grade. In view of this fact the following point for special instruction was submitted on behalf of the city: “As a matter of law, the jury is not entitled to take into consideration the proposed grade of 1871, which you have heard referred to during the course of the trial, or any other grade not subsequently carried out by action of the board of surveyors acting under authority of the city councils, nor should you take into consideration the question of the points at which streets might have been opened, because the question before you is simply the effect upon the market value of this ground because of the opening of these two streets of the width, and at the grade finally determined upon.” The ruling
The second point submitted and refused was as follows : “Whereas the ground of the plaintiff was already below the level of the adjoining streets, the plaintiff is not entitled to have his entire property lifted up to the level of the street as it is made by raising of the grade. There is simply an increase in the elevation of the grade, and the fact of such additional elevation, as affecting the value of the property after the charge, may be shown, but not the specific cost of changing the whole surface of the property by lifting it all up to the new grade.” The ruling of the court was: “The point is declined, for the reason that no such claim has been made by the plaintiff.” In this there was no error. The point followed closely the language of this court in Bond v. Philadelphia, 218 Pa. 475, but there is utter lack of correspond
When on cross-examination it was proposed to ask a witness whether the grade of certain streets in the neighborhood had not fixed and determined the grade of the street in the plaintiff’s land that had been appropriated, an objection to the question was sustained, and the ruling is the subject of the remaining assignment. The irrelevancy of the inquiry is apparent. What governed in the determination of the grade was not a matter to be inquired into; nor was it a question whether a different grade, one affecting less injury to plaintiff’s property, could have been adopted. We can only repeat what we said before, that there is nothing in the case to warrant even a suspicion that any such considerations as these were allowed to influence the result. There was no error in excluding the offer.
The assignments are overruled, and the judgment is affirmed.
Reference
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- Municipalities — Eminent domain — Opening of streets — Damages — Evidence—Immaterial matters — Answers to points. 1. Where iu a trial of a proceeding to recover damages for injuries to plaintiff’s property occasioned by the opening of a city street at a grade above the natural surface, the court has properly excluded evidence offered by the plaintiff to show the originally plotted grade at which the street was laid out, but in an examination of witnesses called by the plaintiff, and principally during their cross-examination, repeated reference was made to the earlier grade, which corresponded closely to the natural surface, but without reflection on the city for abandoning that grade, and only to explain the considerations which had entered into witnesses’ estimates, it is not error for the court to refuse defendant’s request for a point for charge to the effect that as a matter of law the jury was not entitled to take into consideration such originally proposed grade. 2. In the trial of such a ease, where the plaintiff makes no claim for the cost of raising hi® property to the grade of' the highway, the lower court is correct in refusing to charge, as requested by the defendant, that the plaintiff could not recover for such cost. 3. In such a case it is immaterial whether other streets in the same neighborhood have been fixed at the same grade as the street in question, and the court commits no error in refusing to allow defendant to ask a witness for the plaintiff on cross-examination whether the grade of the street causing the damage had not been fixed and determined by the grade of such other streets.