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W. EARL WHITENIGHT AND LILLIAN M. WHITENIGHT v. COMMONWEALTH PENNSYLVANIA (01/28/71)

decided: January 28, 1971.

W. EARL WHITENIGHT AND LILLIAN M. WHITENIGHT, HIS WIFE,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HIGHWAYS. G. RAYMOND WHITENIGHT AND MARY A. WHITENIGHT, HIS WIFE, V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HIGHWAYS



Appeal from the judgment of the Court of Common Pleas of Columbia County at No. 1 March Term, 1965 and No. 2 March Term, 1965, in case of G. Raymond Whitenight, et ux. v. Commonwealth of Pennsylvania, Department of Highways, and W. Earl Whitenight, et ux. v. Commonwealth of Pennsylvania, Department of Highways. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Robert H. Raymond, Jr., Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Fred Speaker, Attorney General, for appellant.

Hervey B. Smith, with him Smith, Eves and Keller, for appellees.

President Judge Bowman and Judges Kramer, Wilkinson, Jr., Manderino, and Mencer. Opinion by Judge Mencer. Manderino, J., concurs in the result.

Author: Mencer

[ 1 Pa. Commw. Page 146]

The Commonwealth filed appeals from judgments entered on jury verdicts awarding appellees, W. Earl Whitenight and Lillian M. Whitenight, $15,000 and G. Raymond Whitenight and Mary A. Whitenight $75,000 as damages for condemnation of 24.7 acres of their land. The appellees own two adjoining farm properties situate in Scott Township, Columbia County, Pennsylvania. Prior to the condemnation, the farms contained approximately 213 acres of land, and W. Earl Whitenight, the father, and G. Raymond Whitenight, the son, operated a sand and gravel business upon these farm lands.

On May 29, 1962, the Commonwealth, acting through the Department of Highways, now the Department of Transportation, condemned for road construction 2.9 acres of the 63 acres owned by W. Earl Whitenight and wife and 21.8 acres of the 150 acres owned by Raymond Whitenight and wife. On March 23, 1967, the Board of View awarded Mr. and Mrs. W. Earl Whitenight $10,000 and Mr. and Mrs. G. Raymond Whitenight $28,500. The following day the Whitenights filed separate appeals from the awards of the Board of Viewers and, when the cases were called for trial, it was stipulated that the two cases be tried together but that the jury should make two separate awards. Following the trial, concluded on January 17, 1968, the Commonwealth filed a motion for a new trial. The lower court refused the motion and judgments were entered on the verdicts.

The Commonwealth advances a single argument as to why this Court should set aside the judgments below. The Commonwealth contends that the trial court erred in allowing testimony by witnesses for the condemnees, over the Commonwealth's objections, as to the dollars per ton value-in-place of sand and gravel apart

[ 1 Pa. Commw. Page 147]

    from the value of the land. The appellees assert that such testimony was admissible but, even if the trial court did err in admitting such evidence, it was harmless error which would not warrant the grant of a new trial when considered in respect to the clear and cautionary charge of the trial court relative to the proper measure of damages.

The general rule, prior to the Eminent Domain Code of 1964, Act of June 22, 1964 (Special Session), P.L. 84, Art. I, § 101 et seq., 26 P.S. § 1-101 et seq. (See Pane v. Department of Highways, 422 Pa. 489, 222 A.2d 913 (1966)), was that the proper measure of damages for lands taken under the power of eminent domain was the difference between the market value of the land before the exercise of the power and as unaffected by it and the market value immediately after the appropriation and as affected by it. Brown v. Commonwealth, 399 Pa. 156, 159 A.2d 881 (1960); Spiwak v. Allegheny County, 366 Pa. 145, 77 A.2d 97 (1950).

It is permissible for the condemnee to introduce evidence of particular items lost through the condemnation. Gilleland v. New York State Natural Gas Corp., 399 Pa. 181, 159 A.2d 673 (1960); Price v. Commonwealth, 205 Pa. Superior Ct. 142, 208 A.2d 23 (1965). However, the condemnee may not introduce evidence of the value of the particular items lost through condemnation but merely ...


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