Appeal, No. 209, March T., 1960, from order of Court of Common Pleas of Allegheny County, July T., 1958, No. 1220, in case of Robert E. Springer v. County of Allegheny. Order reversed; reargument refused December 15, 1960.
Francis A. Barry, First Assistant County Solicitor, with him Maurice Louik, County Solicitor, for appellant.
John A. Metz, Jr., with him Mayer Sniderman, and Metz, Cook, Hanna & Kelly, for appellee.
Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
The defendant county appeals from the order of the court below granting a new trial, on the plaintiff's motion, in an action for the assessment of damages for the county's appropriation of property of the plaintiff in an exercise of its power of eminent domain.
The property involved embraced 69 acres, more or less, of unimproved land in Findlay Township, Allegheny County, situate on a township road. A small portion of the surface had been stripped for the removal of underlying coal and most of the remaining surface was covered with brush and other undergrowth. As above indicated, there were no buildings or other structures on the property which, throughout its length, was subject to an easement for a traversing 10-inch high-pressure commercial gas line.
The trial judge set aside the jury's verdict for the plaintiff by awarding a new trial for the following assigned reasons: (1) the verdict was against the weight of the credible evidence, (2) defendant's counsel made prejudicial remarks in his opening to the jury, and (3) the trial judge erred in charging the jury with respect to damages for delay in payment for the property taken.
Counsel for the plaintiff reminds us of the well established rule that, before the granting of a new trial will be reversed, the appellant must show that the trial court was guilty of a palpable abuse of discretion or
based its action upon an erroneous application of the law, citing Jess v. McMurray, 394 Pa. 526, 527-528, 147 A.2d 420. Fully mindful of this rule, we find no merit in any of the reasons assigned by the court below as justification for the new trial order.
At trial, the plaintiff introduced opinion evidence of three real estate appraisers that the fair market value of the property at the time of the taking was $210,000, $205,000 and $206,000, respectively. The owner himself testified to fair market value of $225,000. The county called two real estate appraisers who gave as their separate opinions that the fair market value of the property at the time of the condemnation was $48,500 and $50,000. The jury returned a verdict for the plaintiff in the sum of $76,000. The board of view had awarded the plaintiff $86,296.50. Each of the parties appealed from the viewers' award to the court of common pleas where both actions were consolidated for the trial involved on the instant appeal.
The lower court's assumption that the verdict was against the weight of the credible evidence transgressed the bounds of the judicial function. The credibility of the oral testimony, which was concerned with the fair market value of the property, was peculiarly for the jury to appraise and not for the court. Nor can it properly be said that the verdict was against the weight of the evidence. The value of the land appropriated was the only substantial issue that the jury had to resolve. There was no dispute as to the extent of the property taken nor its location, condition, topographical characteristics or the plaintiff's right to recover its fair worth. In arriving at a just determination of the fair market value, the jury ...