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August 3, 1951

LYONS et al.

The opinion of the court was delivered by: MARSH

This is an eminent domain case. An Associate Judge of this court sent the jury to view the premises involved and the case was assigned to this court for trial. The jury returned a verdict of $ 15,000 in favor of the plaintiffs. In my opinion, the verdict is clearly excessive and should be reduced. *fn1"

The factual situation considered in a light most favorable to the plaintiffs is as follows. Plaintiffs are two elderly maiden ladies whose ancestors have owned the farm involved since revolutionary days. The property is situated in Indiana County about one mile from Saltsburg, Pennsylvania, and contained 103 acres. The vicinity is entirely rural and the terrain is "hilly." The United States, on the 11th day of March, 1946, condemned 24.73 acres, later reduced to 24.615 acres, for the purpose of relocating the Conemaugh Branch of the Pennsylvania Railroad made necessary because of the Conemaugh Flood Control Dam.

 The Indiana-Blairsville Highway, running generally East and West at that point, intersects the farm. The portion condemned is a strip 400 feet wide and approximately 2,500 feet long running generally North and South, and diagonally intersecting the farm, leaving about 55.44 acres on the side where the buildings are erected and 23.11 acres on the other side.

 A tunnel was constructed under a portion of this strip which construction destroyed a waterfall and the timber. Plaintiffs' use of the surface overlying the condemned strip has not been interfered with since the condemnation. Nevertheless, plaintiffs claim severance damage because their use of the condemned surface is subject to the will of the railroad.

 The evidence indicates that the Upper Freeport vein of coal underlies the property; that this is a general purpose coal; that to remove same the deep mine method is required; and that there is such a mining operation on adjoining land. There was evidence that the vein would produce a maximum of 1,400 tons for each foot of thickness per acre; that the maximum thickness of this vein on the adjoining property is 42 inches, although it is variable. It is also in evidence that there are two deeper veins of coal in this vicinity, neither of which has ever been mined.

 Although there was reserved to the plaintiffs the right to drive two sets of entries through the coal contained in the strip in order to afford underground access from the coal on one side of the condemned strip to that on the other, it was testified that these entries as specified were inconvenient, that their construction might prove expensive because of "local dips" which might fill with water, and that, therefore, the market value of the remaining coal in the farm was adversely affected. In other words there would be a severance damage insofar as the remaining coal was concerned.

 The United States has moved for a new trial, urging that the verdict is excessive; against the weight of the credible evidence; and, because of errors of law occurring at the trial.

 The amount of compensation to be awarded for the taking is the difference between the market value of the farm prior to the taking and the market value of the farm after the taking.

 The Misses Lyons testified that the value of their property before the taking was $ 42,000, and afterwards was $ 14,000, and that, therefore, the damage was $ 28,000. Their real estate expert, West Brown, testified that the market value before the taking was $ 35,000, and afterwards $ 11,740, and that the damage was $ 23,360 (sic). The Government experts valued the property before the taking at $ 10,000 and $ 11,000, respectively, and after the taking at $ 6,000 and $ 7,400, respectively, with the resulting damage estimated at $ 4,000 and $ 3,600, respectively.

 As is usual in cases of this sort, the plaintiffs and their witness grossly exaggerated the damages and the defendants' witnesses minimized them, but with more regard for realities.

 Obviously, the Misses Lyons were not testifying to market value, and the weight of their evidence, though competent, is trifling.

 As to West Brown, counsel for the Government contends that he was not a competent witness because his opinions were not based upon knowledge of sales in the vicinity of the subject property. The Government's objections at the trial were overruled. We thought then and think now that his testimony was competent. It is not always essential that opinion witnesses have knowledge of specific sales. Montana Railway Co. v. Warren, 1890, 137 U.S. 348, 11 S. Ct. 96, 34 L. Ed. 681; 3 Wigmore on Evidence, 3rd Ed. Sec. 714.

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