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WERNER v. COMMONWEALTH (11/12/68)

decided: November 12, 1968.

WERNER
v.
COMMONWEALTH, DEPARTMENT OF HIGHWAYS, APPELLANT



Appeal from judgment of Court of Common Pleas of Lawrence County, Sept. T., 1963, No. 155, in case of Harry A. Werner et al. v. Commonwealth, Department of Highways.

COUNSEL

George R. Specter, Assistant Attorney General, with him Robert W. Conliffe and John R. Rezzolla, Assistant Attorneys General, and William C. Sennett, Attorney General, for Commonwealth, appellant.

Donald R. McKay, with him Martin E. Cusick, Errol Fullerton, and Cusick, Madden, Joyce & McKay, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Eagen and Mr. Justice Roberts concur in the result. Mr. Chief Justice Bell would reverse and grant a new trial. Mr. Justice Cohen dissents. Mr. Justice Musmanno did not participate in the decision of this case.

Author: Jones

[ 432 Pa. Page 282]

This is an appeal by the Commonwealth from a judgment entered on a jury verdict awarding appellees, Harry A. and Astrid M. Werner and Mahoning Valley Sand Company, a total of $312,333.33 damages for the condemnation of 21.1308 acres.

On February 27, 1957, the Commonwealth, acting through the Department of Highways, condemned for road construction purposes 21.1308 acres of a 266.32 acre tract owned by appellees, Werners. The Werners had acquired the property in 1950 and, at the time of the condemnation, were using the land for farming purposes subject, however, to a lease agreement giving appellee-Mahoning the right to remove underlying sand and gravel. The parties stipulated that the lease made Mahoning the fee owner of the minerals and that 1,492,670 tons of sand and gravel had been removed between the effective date of the lease, May 16, 1955, and March of 1965.

Immediately to the east of the Werner property and separated from it by old traffic Route 1 is a tract of land owned in fee by Mahoning. On this tract Mahoning built a sand and gravel processing plant to process the gravel quarried from the Werner tract. The gravel was transported from the Werner tract to the processing plant by means of a hopper and conveyor belt.

In 1963 the Board of Viewers awarded the appellees $130,000. The Commonwealth appealed in order

[ 432 Pa. Page 283]

    to determine whether the unity of use or the integrated use doctrine was applicable. The lower court held that the integrated use doctrine should be employed. This Court quashed an appeal from that ruling on the grounds that it constituted an appeal from an interlocutory decree. Werner v. Commonwealth, 416 Pa. 356, 206 A.2d 317 (1965).

At the trial in the Court of Common Pleas of Lawrence County the jury returned a verdict in favor of the appellees in the amount of $200,000 plus detention damages of $112,333.33, or a total of $312,333.33. Motions for a new trial were denied and judgment entered on the verdict.

The Commonwealth advances five arguments as to why this Court should reverse the judgment below. We will consider each contention in turn.

I

The Commonwealth contends that the trial court erred in allowing one of the appellee's expert witnesses, a civil engineer, to testify that 1,292,846 tons of sand and gravel ...


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