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ELGART v. PHILADELPHIA. (03/24/59)

March 24, 1959

ELGART, APPELLANT,
v.
PHILADELPHIA.



Appeal, No. 287, Jan. T., 1958, from judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1956, No. 5879, in case of Samuel Elgart, trustee, v. City of Philadelphia. Judgment reversed.

COUNSEL

Morris Wolf, with him Blanc, Steinberg, Balder & Steinbrook, and Wolf, Block, Schorr & Solis-Cohen, for appellant.

Jacob J. Siegal, Deputy City Solicitor, with him David Berger, City Solicitor, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Cohen

[ 395 Pa. Page 344]

OPINION BY MR. JUSTICE COHEN

On November 21, 1945, by duly recorded deed, Jean Elgart conveyed premises at 4213 Chester Avenue, Philadelphia to her husband-appellant as trustee. The premises has a frontage of 49 feet on Chester Avenue and a depth of approximately 200 feet northward. This lot was improved with a three-story house converted into apartments. Six years later, on September 20, 1951, by duly recorded deed, Samuel Elgart, as trustee, acquired the adjoining lot to the west, containing a frontage of 139 feet on Chester Avenue with a depth of approximately 200 feet northward. These two conveyances invested the trustee with ownership to the northeast corner of Chester Avenue and 43rd Street, having 188 feet on Chester Avenue and a depth of 200 feet northward along 43rd Street. The entire property was classified "C" residential but, after the passage of a 1952 zoning ordinance, it was classified "F" residential, thereby opening the ground to new uses. In 1956, an ordinance was passed establishing a Health Center whereby the City "took" the last acquired corner property, i.e., 139 feet on Chester Avenue by 200 feet northward for the purposes of its erection.

In the eminent domain proceeding which followed, the lower court did not permit the introduction of testimony relating the damages caused by the City's taking of the corner lot to the remaining premises owned by the appellant, but did allow, over objection of appellant, the introduction of testimony of the original cost of the corner lot when it was purchased by him.

The appellant vainly sought to introduce testimony of expert real estate appraisers to establish severance damages because of the taking of the corner tract. He contends that he should have been permitted to recover not only for the value of the premises taken, but also

[ 395 Pa. Page 345]

    for the loss in value of the adjacent property which was not taken. In order to establish this element of severance damages he sought to introduce evidence of the fair market value of the entire tract (the value before the taking) and then the value of the remainder of the plot containing 49 feet on Chester Avenue after the taking. However, the court below, guided by Gibson v. Fifth Avenue and High Street Bridge Co., 192 Pa. 55, 43 Atl. 339 (1899), determined that since the plaintiff did not establish that there was a "unity of use" between the two contiguous properties he was not entitled to recover severance damages and thereupon excluded the testimony of the value of the entire tract before the taking and the value of the remainder of the tract after the taking.

In the Gibson case a woman owned property abutting on the street, which was being elevated to accommodate a bridge approach. Previous to this improvement, she had purchased rear properties which abutted on side streets and were contiguous to her original holding. Her attempt to recover damages for the alleged loss to the rear adjacent properties was precluded because the court concluded that her intent was to deal with the rear adjoining properties as independent and distinct parcels. In making its determination that there must be a "unity of use" applicable to contiguous properties, as well as non-contiguous properties, the court reached its conclusion without any previous decisional authority for its action. An analysis of the cases, however, which have been decided by this Court, on the question of severance damages, casts serious doubt on the propriety of the decision made in the Gibson case.

From a review of those cases, one can readily conclude that where properties are separated by artificial, Cameron v. ...


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