The opinion of the court was delivered by: BARD
Defendant, the United States of America, filed a motion for a new trial.
Plaintiff, City of Philadelphia, trustee under the will of Stephen Girard, deceased, was the owner of a tract of land containing 3.544 acres, comprising an entire city block, situated in the City of Philadelphia, bounded by 19th Street, Oregon Avenue, 20th Street and Johnston Street. The jury returned a verdict in favor of the plaintiff for $40,000 to compensate it for this land taken by the United States Government, by condemnation proceedings, for public use.
The single issue at the trial was the value of the land. Plaintiff's two witnesses valued the land respectively at $50,000 and $51,000. Defendant's two witnesses valued it respectively at $17,500 and $18,500.
No exceptions were taken to the Court's instructions to the jury. Defendant contends, however: (1) That the Court erred in denying the government's motion to strike the testimony of the plaintiff's witness Tomlinson; (2) that the Court erred in sustaining plaintiff's objection to a line of cross-examination of plaintiff's witness Phillips; and (3) that the verdict was excessive.
1. Tomlinson testified he has been a real estate broker for forty-three years. He recited his qualifications as an expert and his extensive knowledge concerning the value of real estate in this neighborhood, and placed a value of $51,000 upon the land at the time of its taking.
In direct examination and in cross-examination he testified that in making his estimate he took into consideration the value of similar properties, the sales of adjoining properties (Transcript, pp. 53, 59), the condition (p. 60), description (p. 57) and size of the condemned property, the surrounding neighborhood (p. 57), the street improvements (p. 58), the different uses to which the land might be put (pp. 58, 61), and also the most profitable use (pp. 58, 59) to which it might be put. He testified that he thought the most profitable use to which the land could be put would be to build residences.
After he had been examined and cross-examined as to his qualifications and examined and cross-examined as to his estimate and the factors entering into his estimate, counsel for defendant said there were no further questions. Counsel for the plaintiff then asked and was granted permission to ask one more question concerning the city zoning regulation, and the witness replied that these premises are in Zone D, permitting one to build houses in a row or with side yards, set back eight feet from the building line.
Thereupon counsel for defendant again cross-examined the witness at considerable length, directing this further cross-examination principally to the testimony concerning the most profitable use to which the land could be put. The record discloses the following:
"By Mr. Todaro; Q. Isn't it a fact, Mr. Tomlinson, that you considered, as the basis of your valuation of $50,000, a plan of development, the erection of houses, and the sub-division into lots?
"Mr. Gaffney: If your Honor please, I object to that, because even if he did it certainly wouldn't be testimony.
"The Court: The objection is overruled. I will let him answer that. A. Naturally, in order to set a value on a piece of land, you consider what its best uses are, and I considered the best uses of the ground was for the erection of dwellings, and it is easy enough to ascertain how many dwellings could be built upon the ground."
This line of questioning was permitted, and later the following took place (p. 71):
"By Mr. Todaro: Q.And in your mind, Mr. Tomlinson, you made a calculation of how many lots and how many houses could be built, and you also ...