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MAZUR v. COMMONWEALTH (09/30/57)

September 30, 1957

MAZUR
v.
COMMONWEALTH, APPELLANT.



Appeal, No. 102, Jan. T., 1957, from order of Court of Common Pleas of Schuylkill County, May T., 1954, No. 504, in case of Walter Mazur et ux. v. Commonwealth of Pennsylvania. Order affirmed.

COUNSEL

John E. Lavelle, with him Joseph M. Donnelly, Deputy Attorney General, John R. Rezzolla, Jr., Chief Counsel, Department of Highways, for appellant.

John W. Schmitthenner, with him Paris J. DeSantis, for appellee.

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

Author: Jones

[ 390 Pa. Page 149]

OPINION BY MR. CHIEF JUSTICE JONES

This appeal is from an order granting a new trial in an action to determine the damages due the plaintiff

[ 390 Pa. Page 150]

    husband and wife for the Commonwealth's appropriation of a portion of their land for highway purposes in an exercise of the condemnor's power of eminent domain. A board of view awarded the plaintiffs $10,000 which the Commonwealth appealed to the court of common pleas. The issue was there tried to a jury, which returned a verdict for the plaintiffs in the sum of $4,053. On the plaintiffs' motion, the court granted a new trial on the ground that the verdict was inadequate. From that order, the Commonwealth has appealed.

At the time of the relocation and construction of the new highway the plaintiffs' tract, containing approximately 96 acres, was bisected by a then existing highway with which a large portion of the property was level, a situation which admitted of driving directly to and from the highway and the property. Prior to the relocation, the portion of the land abutting on the highway had been surveyed and laid out as building lots. After the relocation and improvement, the plaintiffs' property was no longer level with the highway and the area laid out in building lots was inaccessible to the highway because of the changes in grade, which also affected the drainage and cause surface water from the highway to run upon portions of the plaintiffs' land making it swampy and rendering it useless for any purpose. In the construction of the new highway the Commonwealth actually took 1.9 acres of the plaintiffs' land for the widening and relocation and an additional .5 acre for the slopes of the cuts and fills.

As so frequently happens in cases of this nature, there was a wide disparity in the opinion evidence adduced by the respective parties as to the damages due to the taking. The husband plaintiff gave $15,000 as his opinion of the damages and an expert witness

[ 390 Pa. Page 151]

    called by him and his wife placed the damages at $11,750. On the other hand, the Commonwealth's sole expert witness ...


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