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DAGUE v. COMMONWEALTH (06/30/65)

decided: June 30, 1965.

DAGUE, APPELLANT,
v.
COMMONWEALTH



Appeal from order of Court of Common Pleas of Washington County, May T., 1962, No. 602, in case of Huldah C. Dague v. Commonwealth of Pennsylvania, Department of Highways.

COUNSEL

Wray G. Zelt, with him Alexander McIlvaine, for appellant.

Davis G. Yohe, Assistant Attorney General, with him John B. Wilson, Michael R. Deckman, Assistant Attorneys General, John R. Rezzolla, Chief Counsel, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones and Mr. Justice Eagen dissent. Dissenting Opinion by Mr. Justice Musmanno.

Author: Bell

[ 418 Pa. Page 341]

Mrs. Dague, appellant-landowner, was awarded damages of $18,200 by a Board of Viewers for a portion of her property condemned by the Commonwealth for purposes of constructing a limited access highway.

[ 418 Pa. Page 342]

The Commonwealth appealed and at the ensuing trial, a jury returned a verdict for the appellant in the sum of $31,000, plus interest. The Commonwealth filed a motion for a new trial alleging excessiveness of the verdict. The lower Court ordered appellant to remit the amount of the verdict in excess of $18,200, the amount of the Viewers' award, or a new trial would be ordered. Appellant refused to accept the remittitur; the Court ordered a new trial and from this Order appellant took this appeal.

While the case, as we shall see, was very unusual, the question raised by this appeal boils down to this: Did the lower Court commit either a clear abuse of discretion or an error of law which controlled the outcome of the case? Vaughan v. Commonwealth, 407 Pa. 189, 180 A.2d 12; Bohner v. Eastern Express, Inc., 405 Pa. 463, 472, 175 A.2d 864.

Appellant's property consisted of a tract of farm land (on which she raised cattle and sheep), containing approximately 124 acres. On this property, there was a two-story frame, 6-room dwelling house which had no electricity, no bathroom facilities and no running water,*fn* and a frame barn, a sheep shed and wagon shed. Appellant's property had no frontage on any public road; the only access to it was by an unpaved dirt lane approximately 18 feet wide, good enough for a jeep to traverse but difficult for an automobile. While this lane ran through the property of an adjoining landowner, appellant was entitled to use the lane as the result of an easement by necessity.

The Commonwealth, under its power of eminent domain, condemned and appropriated for the highway approximately 21.5 acres of appellant's land, which included the frame barn and wagon shed. The remaining 102.5 acres were severed by the highway into two

[ 418 Pa. Page 343]

    tracts: (1) a 36 acre tract*fn** which was undisturbed by the condemnation, and (2) a 66.5 acre tract which was landlocked and cut off from any approach whatever because of the limited access highway that was to be built over appellant's land.

At the trial, the witnesses for the Commonwealth -- applying the before and after test -- valued the property taken at from $9,300 to $10,400; appellant's witnesses' ...


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