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DEPARTMENT HIGHWAYS APPEAL. MITCHELL CONDEMNATION CASE (03/23/67)

decided: March 23, 1967.

DEPARTMENT OF HIGHWAYS APPEAL. MITCHELL CONDEMNATION CASE


Appeal from judgment of Court of Common Pleas of Washington County, Nov. T., 1964, No. 241, sur May T., 1964, No. 36, Roads, in re appropriations of land of Robert E. Mitchell et ux. in Cecil Township.

COUNSEL

William R. Mosolino, Assistant Attorney General, with him Guy S. Mamolito, Assistant Attorney General, John R. Rezzolla, Chief Counsel, and Walter E. Alessandroni, Attorney General, for Department of Highways, Commonwealth of Pennsylvania, appellant.

Adolph L. Zeman, with him Robert L. Zeman, and Zeman and Zeman, for appellees.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 209 Pa. Super. Page 290]

Robert E. Mitchell and Lenora V. Mitchell are owners of a 48.53 acre farm in Washington County. In order to build a limited access state highway through that area the Commonwealth, by a condemnation dated April 11, 1962, appropriated 2.850 acres of the Mitchell property for construction of the highway, and severed a 2.14 acre tract from the balance of the Mitchell property. A Board of View awarded the Mitchells $3,300 in damages, including detention damages of $443, or a net award of $2,857. The Mitchells appealed the award and a trial was held in March of 1965 resulting in a verdict of $6,500 including detention damages, or a net award of $5,532. Judgment was entered on the verdict.

The Commonwealth appeals on the grounds that (1) the court erred in holding that circuitry of travel or difficulty in access caused the Mitchells by the new highway was an element of damages; (2) the court erred in refusing to allow testimony as to the price at which the property was listed with a brokerage firm shortly before condemnation, and (3) the verdict was excessive and contrary to law.

I.

The Mitchells gained title to the property and a right to damages for the condemned portion in 1963 for a purchase price of $23,000. The farm is improved with a six-room brick house and garage and two small barns and sheds. The farm itself is in the shape of an "L". Township Route 708 abuts one end of the "L" and the improvements with a private driveway giving access to Route 708 are on that same end. The acreage taken or severed by the Commonwealth is located at that end of the "L" which is farthest removed from the end where the buildings and driveway are. Such acreage never had access to any public road except by traveling over the remainder of the farm.

[ 209 Pa. Super. Page 291]

Prior to construction of the limited access highway the Mitchells had three ways of driving over country "red dog" roads to Route 519, a state highway and the main road through the area. The most direct route was to drive out their private road to Township Route 708, then proceed left on Route 708 about 1,000 feet to Township Route 763 and then easterly on Route 763 to Route 519, a total distance of 1.1 miles. Once on Route 519 the Mitchells could drive in one direction toward Hendersonville or in the other toward Canonsburg. The new limited access highway cut off Route 763 between the intersections with Routes 708 and 519, thus forcing the Mitchells to take more circuitous routes over township roads to either Hendersonville or Canonsburg where they could then, if they were going farther, enter Route 519. The route to Canonsburg is now about 4 to 5 miles; the route to Hendersonville, 3.2 miles. Prior to the condemnation the respective distances were approximately 4 1/2 miles and 2 miles via Routes 763 and 519.

The court below allowed the witnesses for Mitchell to consider the cutting off of Route 763 as an element of damages in determining the after value of the Mitchell property. Mitchell himself estimated his damages at $10,000. Edwards, a Mitchell witness, estimated damages of $7,750 of which he attributed $2,250 to the land actually affected, $1,500 to new fencing required and $4,000 to loss occasioned by cutting off Route 763. Buckley, the Mitchells' other witness, estimated damages at $8,350 of which he attributed $2,000 to the land affected, $1,500 to new fencing and the remainder, $4,850 to the loss of the use of Route 763. Two Commonwealth ...


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