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KAMERER ET AL. v. COMMONWEALTH (01/03/50)

January 3, 1950

KAMERER ET AL., APPELLANTS,
v.
COMMONWEALTH



Appeal, No. 149, March T., 1948, from judgment of Court of Common Pleas of Butler County, Sept. T., 1947, No. 106, in case of Jack Lewis Kamerer et al. v. Commonwealth of Pennsylvania. Judgment affirmed.

COUNSEL

Lee C. McCandless, for appellants.

Robert M. Mountenay, Assistant Deputy Attorney General, with him Robert B. Greer, Jr., Associate Counsel, Phil H. Lewis, Deputy Attorney General and T. McKeen Chidsey, Attorney General, for appellee.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

Author: Jones

[ 364 Pa. Page 121]

OPINION BY MR. JUSTICE JONES

The plaintiffs, alleging that their property in Mercer Township, Butler County, had been damaged by the Commonwealth's relocation and improvement of State Highway Route 73, petitioned the Court of Quarter Sessions

[ 364 Pa. Page 122]

    of the county, pursuant to the provisions of Section 16 of the Act of May 31, 1911, P.L. 468, as supplemented and amended (36 PS ยง 171), for the appointment of viewers to assess the damages alleged. The court so acted; and, following a view and hearings, the viewers filed a report wherein they assessed no damages to the petitioners. The latter thereupon appealed to the Court of Common Pleas, as allowed by the Act of 1911, supra, where, upon trial of the issue joined between the petitioners as plaintiffs and the Commonwealth as defendant, the jury returned a verdict for the defendant. Motion for new trial was refused; and the plaintiffs appeal from the judgment entered on the verdict.

The principal issue litigated below was one of fact as to whether there had been a taking of any of the plaintiffs' property by the Commonwealth in connection with the highway improvement, -- a question which the learned trial judge submitted to the jury in a charge to which the plaintiffs took but a general exception. As appellants here, they contend that the trial court erred in permitting the jury to consider testimony of two engineering witnesses for the Commonwealth with respect to a certain plan in evidence. They argue that the assailed testimony was incompetent, as being merely opinion evidence opposed to actual measurements, to other surveys in evidence and, also, to a record right of way allegedly showing the location of the old road since 1858.

In reconstructing old Route 73, upon which the appellants' property abutted, the new highway was relocated away from their property; a connecting road joining the former highway with the new was constructed immediately in front of their property. The relocation, which they say encroached upon their property, is the portion of the connecting road which extends from the old highway toward their property. The basic factual issue was whether the former highway

[ 364 Pa. Page 123]

(Route 73) as originally laid out was forty feet wide, as the Commonwealth maintains, or only thirty-three feet wide, as the appellants contend. If it was forty feet wide, then there was no taking of the appellants' property incident to the highway ...


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