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BRAUGHLER v. COMMONWEALTH. (04/26/57)

April 26, 1957

BRAUGHLER, APPELLANT,
v.
COMMONWEALTH.



Appeal, No. 10, March T., 1957, from order of Court of Common Pleas of Indiana County, June T., 1954, No. 266, in case of Darhl K. Braughler et ux. v. Commonwealth of Pennsylvania. Order affirmed.

COUNSEL

Lee C. McCandless, with him James L. Jack, Jr., for appellants.

G. S. Parnell, Sr., with him G. S. Parnell, Jr., and Parnell & Parnell, Special Counsel, John R. Rezzolla, Chief Counsel, Joseph L. Donnelly, Deputy Attorney General, and Thomas D. McBride, Attorney General, for appellees.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold and Jones, JJ.

Author: Chidsey

[ 388 Pa. Page 574]

OPINION BY MR. JUSTICE CHIDSEY

This is an appeal from the grant of a new trial in an eminent domain proceeding.

On January 23, 1951 the Governor of the Commonwealth approved plans for the relocation of State Highway Route 80 which traversed the appellants' property in Rayne Township, Indiana County. The relocated highway extended through appellants' property for a distance of 1,375 feet. Both the old and the new highway ran along a steep hillside on the eastern portion of the appellants' property. The right-of-way taken for the relocation was 100 feet in width but because of slopes and fills additional land, varying from 75 to 106 feet in width had to be taken at points on the sides. The total area taken was 4.3 acres. Appellants' property was farmland, consisting of between 57 and 58 acres, with a house, barn and other structures erected thereon. The appellant Darhl K. Braughler was in the

[ 388 Pa. Page 575]

    business of portable feed grinding, going from farm to farm in this pursuit. In addition to living on the property here involved, Braughler testified that he used it for farming and raising Christmas trees. Appellants purchased the farm from one James Rising for $6,000 on October 23, 1950, just three months before the condemnation on January 23, 1951. When the matter was before the board of viewers they determined that the damages to the appellants amounted to $2,375. On appeal, the issue was tried before a jury and a verdict was rendered in the amount of $6,000. The court below regarding the verdict as excessive and against the weight of the evidence, entered an order that if appellants would file a disclaimer and remit all of the verdict over and above $4,500, a new trial would be refused; otherwise a new trial would be awarded. Appellants refused to file a remittitur and the court granted a new trial. This appeal followed. The only question presented by the appeal is whether the court below palpably abused its discretion in granting a new trial on the ground that the verdict was against the weight of the evidence.

The court below charged the jury: "... the measure of damages is the difference between the fair market value of that farm out there before the State took this land, which was on January 23, 1951, and the fair market value after they took the land. The difference between the fair market value before and the fair market value after, that is the measure of damages. Now to that, as has been said here, you can also add, and you are permitted to add, an amount for the delay in the payment of that amount, and that amount which you add cannot exceed 6% interest per year. ...". No complaint is made of this instruction.

On behalf of the owners of the land opinions were given by the appellant, Darhl K. Braughler, by a neighbor,

[ 388 Pa. Page 576]

Lyle Helman who owned a farm on Route 80 about a mile from appellants' property and who had a similar claim pending against the Commonwealth, by Brook Braughler, the father of the appellant, and by Allen P. Hovis and Charles Mears. The latter three owned farms in the vicinity and based their opinion as to the value of appellants' property before the taking on their familiarity with it. With the exception of Helman who testified that he bought a property about a mile from that of appellants without stating when or at what price, and without any description of it, neither appellant Braughler nor his witnesses testified as to any sales of property in the vicinity. Tabulated, the opinions of these witnesses as to the fair value of appellants' property before and after the taking and the difference, representing the damages thereto sustained by appellants, is as follows:

Before After Damages

Darhl K. Braughler $11,500 to $1,000 to

12,000 1,500 $10,000

Lyle Helman 11,000 2,500 8,500

Brook Braughler 10,000 2,500 to 7,000

3,000

Allen P. Hovis 10,500 3,500 7,000

Charles Mears 10,000 3,000 7,000

On behalf of the Commonwealth opinions were given as follows:

Before After Damages

Ellsworth Walls $6,500 $4,750 $1,750

Turner B. Streams 6,000 4,800 1,200

The witness Streams was an experienced appraiser of property and testified that he had knowledge of sales and purchases of farms in Indiana County. Walls was a licensed real estate broker who testified that he was acquainted with the appellants' ...


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