Appeals, Nos. 228 and 229, Jan, T., 1960, from judgment of Court of Common Pleas of Lehigh County, Sept. T., 1957, No. 75, in case of Lehigh Valley Trust Company, trustee under deed of trust for Fred A. Fetherolf, Jr. v. Pennsylvania Turnpike Commission. Judgment affirmed; reargument refused August 16, 1960. Eminent domain proceedings. Before KOCH, J. Verdict entered for plaintiff, plaintiff's motion for new trial denied, and judgment entered. Plaintiff and defendant appealed.
Philip Price, with him William B. Butz, Robert K. Young, and Barnes, Dechert, Price, Myers & Rhoads, for plaintiff.
Irving Wilson Coleman, for Pennsylvania Turnpike Commission, defendant.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Eagen, JJ.
OPINION BY MR. JUSTICE COHEN
These are cross appeals from a judgment entered on a jury verdict in an eminent domain proceeding brought by the Pennsylvania Turnpike Commission. The condemnee seeks a new trial while the Commission alleges error in the lower court's increasing the award of detention damages.
On January 18, 1954, the Pennsylvania Turnpike Commission condemned certain lands owned by the condemnee in preparation for the construction of the Northeast Turnpike extension. Prior to the taking, the condemnee owned approximately 185 acres of land which was divided into two tracts by Route 22, a four lane limited access highway running east and west below the grade level of, and allowing no access from, the condemnee's lands. Eighty-one acres of the condemnee's land lay north of Route 22, while 104 acres lay south of it. The course of the Turnpike (now constructed) runs north and south through the easterly portion of the condemned land and across Route 22 at right angles on an overhead bridge. Approximately 21 acres north of Route 22 and 44 acres south of it were taken in fee.
The separate condemnation necessary for the construction of Route 22 had taken place some two and a half years before the instant condemnation. At that time the condemnee's single unit of land (then 194 acres) had been used in its entirety for farming, and the condemnee continued to so use the separate tracts after the construction of the dissecting highway, Route 22.
The condemnee's principal objection herein is directed at the lower court's refusal to permit the condemnee
to introduce testimony as to the values of the separate tracts of land (both before and after the Turnpike condemnation) after the condemnee had first introduced testimony as to the depreciation in value of the tract as a whole. Condemnee argues that because the separating limited-access highway (Route 22) made the two tracts of land virtually inaccessible to each other and the use of each tract separate, the injury to one in no way affected the other. Hence, condemnee maintains, the court was in error in requiring them to be valued in the condemnation as a single tract merely because they were condemned for the same highway.
If these were the only facts to be considered, we might be inclined to agree. But in this case the condemnee initially chose to try his case on the theory that only one integrated tract was affected by the condemnation. Each of condemnee's expert witnesses was questioned as to his opinion of the damages occasioned by the whole tract upon the taking. Lester A. Grammes, the condemnee's first expert witness, testified that the acreage affected before the taking was 185 acres, that in his opinion the highest and best use of this entire tract of land, both north and south of Route 22, was for residential and/or commercial purposes, and then gave his opinion as to the fair market value of the tract as a whole before the taking and then after the taking. The testimony of Allen Folk, condemnee's other expert witness, was presented in the same manner. It was only after this testimony by each expert was received in evidence without objection that the court refused to permit ...