Greenawalt v. West Newton Borough

Opinion by Williams, J., The plaintiff, Greenawalt, sought to recover damages for injuries to his property caused by a change of grade. At the trial it was shown that certain trees were destroyed as shade trees, that the street was lowered 18 inches, that there had to be a readjustment of the driveway, water and gas lines and sewer system, and that plaintiff’s property was about eight and one-half feet above the former street level and sloped down in steep terraces. He contended that the change in grade also necessitated the building of a retaining wall to protect his terraces. The sole question in dispute was the amount of damages suffered by the plaintiff. The appellant contends under assignments 1 to 7, 9 and 12, that as the plaintiff’s property was above grade when the change was made, plaintiff’s witnesses should not have been permitted to compute or consider the cost of a retaining wall in their determination of the market value of plaintiff’s property before and after the change of grade. The cases cited in support of the contention were clearly distinguished by the learned court below when it was pointed out that in the present case there was no effort to show the cost of changing the plaintiff’s lot to a condition which did not before exist. The situation is rather one, in which conditions have been interfered with which called for no change in order that the land might be available for the purposes which determine its market value. The cost of preserving the property in the condition it was prior to the change of grade, or its restoration thereto, is a proper element to be considered in making an estimate of the market value. The cost of building a retaining wall was expressly decided to be such an element for consideration in Hill v. Oakmont Boro., 47 Pa. Superior Ct. 261. Whether it was or was not necessary for the retaining wall to be built and its cost as affecting the market value were questions solely for the jury and the [580] charge of the court is justified by the principles set forth in Patton v. Philadelphia, 175 Pa. 88; Bond V. Philadelphia, 218 Pa. 475, and Dawson v. Pittsburgh, 159 Pa. 317. This disposes of the eighth assignment of error. The tenth and eleventh assignments of error raise substantially the same question, viz: whether the court erred in affirming plaintiff’s third and fourth points for charge. The gist of these is contained in the fourth point which is as follows: “The defendant borough is not entitled to set-off against the special damages to the plaintiff’s property, the subsequent increase of value of the property common to the entire neighborhood and produced or brought about by the improvement of Vine street.” The court in approving the point said: “That is true. Any benefit that is common to the entire neighborhood is not entitled to be set off against any special damages the plaintiff has received.” This is a proper statement of the law: Rudderow v. Philadelphia, 166 Pa. 241; Dawson v. Pittsburgh, 159 Pa. 317; Aswell v. Scranton, 175 Pa. 173. There is nothing'in the charge which precluded the jury from setting off special benefits accruing to the plaintiff’s lot provided there had been any proof of such benefits. The court affirmed defendant’s point as follows: “If the grading and other improvement made by the defendant borough on Vine street increased the value of the' plaintiff’s property, as much as, or more than the cost to him to repair it or adjust himself to the changed state of things, he is not damaged and should not recover.” If the defendant desired more specific instructions on this point its counsel should have asked for them: Fortney v. Breon, 245 Pa. 47. As there was no evidence of any special benefits, no harm resulted from a failure to be more specific on the question. The assignments of error are overruled and judgment affirmed.