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DYER v. COMMONWEALTH (06/30/59)

June 30, 1959

DYER
v.
COMMONWEALTH, APPELLANT.



Appeal, No. 99, Jan. T., 1959, from judgment of Court of Common Pleas of Cumberland County, Dec. T., 1957, No. 421, in case of Norman W. Dyer et ux. v. Commonwealth of Pennsylvania. Judgment affirmed; reargument refused August 3, 1959. Proceedings on appeal by Commonwealth in condemnation proceedings from decision of viewers. Before SHUGHART, P.J., and a jury. Verdict for plaintiffs; Commonwealth's motion for new trial overruled and judgment entered. Commonwealth appealed.

COUNSEL

Frank E. Roda, Assistant Attorney General, with him John R. Rezzolla, Jr., Chief Counsel, and Anne X. Alpern, Attorney General, for appellant.

John M. Eakin, for appellees.

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

Author: Jones

[ 396 Pa. Page 526]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

On November 30, 1956, the Commonwealth of Pennsylvania acting through its Department of Highways, condemned 3.97 acres of appellees' 20.3 acre tract for the purpose of the construction of a limited access highway. One of the improvements on the condemned portion of appellees' tract was a multiple dwelling which dwelling was relocated subsequently by appellees on a portion of their land which was not condemned.

The parties being unable to agree on the amount of damages, viewers were appointed, and the viewers awarded $57,000 to the appellees. An appeal from this award was taken by the Commonwealth to the Court of Common Pleas of Cumberland County and a jury trial resulted in a verdict in appellees' favor in the amount of $55,650. From the refusal of a new trial the Commonwealth has taken this appeal.

At the pre-trial conference in the court below, the Commonwealth contended that the measure of damages should be the difference between the value of the entire 20.3 acre tract before the condemnation, including all buildings situated thereon, and the value of the remaining tract after the condemnation, including the multiple dwelling as relocated by appellees. A written offer of proof of such values was submitted at trial and refused, and the jury was instructed that the multiple dwelling was to be considered in fixing the value of the land prior to condemnation, but was to be excluded from its consideration in determining the value of the remaining uncondemned portion of appellees' land.*fn1

[ 396 Pa. Page 527]

The rule for establishing the measure of damages in eminent domain proceedings has been set forth recently in Mazur v. Commonwealth, 390 Pa. 148, 152, 134 A.2d 669: "The owner of the land is entitled to receive as damages the difference between the value of the land immediately before the taking and the value of the land immediately after the taking, as affected by the taking ...." (Emphasis supplied): Braughler v. Commonwealth, 388 Pa. 573, 131 A.2d 341. Furthermore, the cost of rebuilding or relocating improvements, necessitated by the condemnation, may not be introduced as a specific item of damage, but may be admitted only as bearing on the value of the property before and after the condemnation. In Westinghouse Air Brake Co. v. Pittsburgh, 316 Pa. 372, 375, 176 A. 13, we stated: "In condemnation cases, to ascertain the damages accruing to an owner from the appropriation of his land or the consequential injury that may follow such appropriation, the usual and ordinary standard is the difference in the market value before and after taking. Estimates as to the costs of rebuilding specific items of property ... affected by the taking, are not recoverable or admissible as distinct items of damage, but such losses may become useful as elements bearing on the market value before and after the appropriation. [citing cases]". See also: Perla v. Commonwealth, 392 Pa. 96, 99, 139 A.2d 673. Again in Butler Water Company's Petition, 338 Pa. 282, 13 A.2d 72, where a utility was required to move certain facilities from a condemned portion of its land to another part of the land remaining after condemnation, we stated: "The award of the cost of removal of the facilities, however, cannot be justified as a separate item

[ 396 Pa. Page 528]

    of damage. The true measure of damages is the difference between the value of the property before and after the appropriation. The cost of removal of things on the land to a different location is not allowable as a separate element of damage, but may be taken into account in fixing the before and after value: Becker v. Phila. & Reading R.R. Co., 177 Pa. 252, ...


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