Appeal from order of Court of Common Pleas of Lancaster County, Feb. T., 1966, No. 35, in case of Commonwealth of Pennsylvania, acting by and through the Pennsylvania Game Commission, v. 108.3 acres of land in Clay Township and Alger H. Shirk.
John W. Beyer, with him Arnold, Bricker, Beyer and Barnes, for appellant.
William M. Musser, Jr., Special Counsel, with him Benjamin B. Solomon, Assistant Attorney General, Raymond C. Miller, Deputy Attorney General, and William C. Sennett, Attorney General, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Jones dissents. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Eagen joins in this concurring opinion.
Appellant owned approximately 108.3 acres of woodland in Clay Township, Lancaster County. The Commonwealth,
acting under its power of eminent domain, condemned the land and petitioned for a board of view which was appointed by the lower court. After the board viewed the subject property and concluded its hearing, it awarded appellant damages in the amount of $16,600. Appellant appealed to the Court of Common Pleas of Lancaster County requesting a jury trial to determine damages.
At the trial, the judge and jury viewed the subject property. Appellant testified that his damages as a result of the condemnation were $44,840, and his expert witnesses testified to damages of approximately $34,000. The Commonwealth's expert witnesses testified to damages in the amount of $12,000, and the jury returned a verdict in the amount of $30,000. The Commonwealth moved for a new trial on the ground that the verdict was excessive and, after argument, the court en banc directed appellant to file a remittitur of $10,000 or suffer a new trial. Appellant refused to file a remittitur and a new trial was ordered. Appellant appeals from that order.
In this appeal we must determine whether the trial judge committed an abuse of discretion by ordering a new trial. An examination of the record convinces us that the trial judge did not abuse his discretion. We believe that the record discloses sufficient basis for the trial judge to conclude that the amount awarded by the jury was excessive. It is at least debatable that the land in question was a marshy area and that it would not be economically feasible to cut the timber which presently existed on the property. The disparity between the award of the viewers and the amount of the jury verdict was also taken into consideration, the jury verdict being twice the amount of the award of the viewers.
Furthermore, we reject appellant's contention that the Eminent Domain Code, Act of June 22, 1964, P. L.
, Art. I, § 703 (26 P.S. § 1-703) requiring the trial judge to accompany the jury on the view, does not authorize the trial judge to consider his own observations in determining whether or not the jury verdict was excessive. Section 703 provides that ". . . the view shall be evidentiary." Since the view is to be considered evidentiary, what the trial judge as well as the jury saw must constitute part of the evidence and therefore was properly considered by ...