North Chester Borough v. Eckfeldt

North Chester Borough v. Eckfeldt.

In an action for damages for tile change of grade of a street in a borough, a witness was offered to testify as to the vcilue of the land, who lived in the borough, had been assessor for a number of years, owned property therein, negotiated the sale of a property on the same street on which the property injured was situated, some five squares distant, knew the property injured, and expressed himself as competent to fix the value on the property before the interference complained of and afterward, by the value he would be willing to give or take, and by his opinion as assessor, and who was agent to sell a tract of some fifty-nine acres in different lots. The court below held that the opinion as assessor was insufficient, as being more of a comparative than actual value, and that fixing a value by what the witness would give or take was incompetent unless based upon a knowledge of the value, but admitted the witness, under all the evidence. On writ of error to review a verdict for plaintiff, the admission of the witness was assigned for error, quoting the evidence as to competency but not as to value. Held, that the judgment should be affirmed.

Another witness was held competent who did not live in the borough, or own property there, but who testified that he knew the value of the property from sales that had been made in the vicinity of the property within the last year.

The statute of limitations begins to run only from, the date of the actual grading of the land by a borough, and not from the date of the resolution of the borough council authorizing the change of grade.

Feb. 12, 1889.

Error, No. 138, Jan. T. 1888, to review a judgment on a verdict for plaintiff on an appeal from viewers, assessing damages to Adam C. Eckfeldt for the change of grade of a street in North Chester borough, at June T. 1887, No. 37. Green and Clark, JJ., absent.

Proceedings were begun in this case March 14, 1887. The plea, on appeal from the assessment by the jury, was not guilty.

The evidence was to the following effect, on the trial before Clayton, P. J.:

On Nov. 17, 1874, the borough of North Chester adopted a plan of streets, grades, etc. This plan changed the grade in front of the property of plaintiff. The actual physical change was made some time in 1880 or 1881, the exact time not being established by the testimony. In 1884 the borough again changed ithe grade, lowering it some two feet more at one end, running down to nothing at the other end.

N athan Sharpless, a witness for plaintiff, was asked: “ Q. Where do you live? A. North Chester. Q. Are you familiar with Mr. Eckfeldt’s property in North Chester ? A. Í have some knowledge of it in passing along there every day. Q. Are you familiar with the values of properties in North Chester borough? A. Yes, sir; I am somewhat. Q. Did you hold an office in the borough and if so what was it ? A. I have been assessor for them for a number of years up to within two years previous to this. Q. When was your first term ? A. In 1876, I think, and on up till two years before the present year. Q. Were you well acquainted with Mr. Eckfeldt’s property before and after the cutting down of Providence Avenue about two years ago in front of his property? A. I think I have noticed it. Q. In your opinion what damages did Mr. Eckfeldt sustain by reason of the cutting down of Providence Avenue ? The Court: I don’t think he can answer that question. He may state in his judgment what is the difference in value of the property since the cutting and as affected by it and the value before as unaffected by it. He may state that. Mr. Hannum: And another objection is I don’t think the witness has shown himself to be properly qualified.”

Cross-examined as to competency: “ Q. Do you know anything about the selling values of lands in North Chester borough? A. Yes, sir; I think so. Q. In this vicinity ? Did you ever buy any ? A. Yes, sir. Q. Of your own knowledge, in this vicinity? A. Yes, sir; in the vicinity of North Chester. Q. I mean in the vicinity of this property. A. I have never bought any adjoining this property, but 1 have bought the property where I live. Q. How long ago was that? A. About 10 years ago. Q. How near to Mr. Eckfeldt’s property is it ? A. It is about 5 squares from it. Q. North of it, is it? A. Yes, sir. Q. Did you ever buy any other property in North Chester anywhere? A. No, sir. Q. Did you ever sell any? A. I was interested in the selling of the property now owned by Benjamin Blakely. Q. How were you interested in it ? A. I was the employee of the estate; I worked up the sale. Q. You did not sell it? A. Yes, sir, I did. Q. You were not the owner? A. No, but I was the employee of the estate. Q. Did you get a commission? A. No; I didn’t work for a commission, I worked for a salary. Q. How far is that from this property? A. About the same distance. The Court: Do you know what properties are selling for along Providence Avenue, Mr. Sharpless, by the foot? A. I have not known any that have been sold within the last few years. The Court: Is there a regular price per foot there ? A. I don’t know that there is. The Court: It sells by the acre or lot? A. There have some been sold there by the acre, I suppose; I don’t know; Robert Hannum’s property, I think, sold by the acre. The Court: Do you think, from your knowledge, however obtained, that you are able to say what Mr. Eckfeldt’s property was worth before this change of grade in a fair market ? A. Well, I suppose I have formed an opinion as assessor. Q. And only as assessor ? A. That is all. The Court: That is more of a comparative than an actual value? A. Yes; comparing it with other properties. The Court: I don’t think he is up to the mark quite. Mr. Lindsay: Were you upon this property of Mr. Eckfeldt’s before the cut was made? A. Yes, sir. Q. Were you familiar with it ? A. I had frequently been on the property. Q. Were you upon it immediately after the cut was made? A. Yes, sir; we are obliged to go through there to go up and down the street. Q. You were obliged to go through his land? A. Yes, sir; on foot we were obliged to go through his land. The Court: The question is whether he can give the value. Are you able to fix a market value upon Mi’. Eckfeldt’s property immediately before the cutting was commenced? A. I think so, sir. The Court: And then fix a value upon it immediately afterward, and tell tbe difference in the two values ? A. Why, I should suppose so; I suppose I could form a value; what I would be willing to give or take. The court: Unless you know the value, that is not evidence; you may be willing to give more than it was worth or you may give less. Mr. Lindsay: This gentleman has been an agent to sell real •estate and he has been assessor and is familiar with all the lands in the borough. Did not you have charge of the whole John M. •Sharpless estate ? The Court: How much was there of it ? A. I think there were fifty-nine acres, altogether, in different plots, The ■Court: Well, I think, perhaps, we had better let him testify. Mr. Hannum: You did not have charge of the whole John M. Sharp-less estate for sale? A. Yes, sir, I did. Q. All of it? A. Yes, sir; I am at liberty to sell all the parts at any time, if we can get •our price for them.” Exception. [1]

C. W. Perkins, a witness for the plaintiff, was asked : “You •are a son-in-law of Mr. Eckfeldt’s? A. Yes, sir. Q. Are you acquainted with this property? A. I am, yes, sir. Q. Will you please to state whether you are able in the house to.see persons passing along the street, and if so with what facility? A. Well, it would have to be a very tall person to see the top of his head when passing along the pavement; a person of my height you could not ¡see at all from the house. Q. In walking along the sidewalk is the lawn visible? A. No, sir; because the lawn is high above the pavement. Q. What was the condition of the property before the •change of grade in that respect? A. Well, you could see everything that passed or repassed along the road. Q. Could you see •everything that passed and repassed both in the lawn and from the lawn onto the road ? The Court: How far does the house extend back from the road ? A. Well, I don’t know the exact distance in feet. The Court: Well, as near as you can tell. A. I suppose nearly the length of this court room. The Court: The lawn was planted full of trees? A. Yes, and shrubbery and flowers, etc. The Court: And you would have to look through the shrubbery and trees, and flowers, to see on the road? A. Well, you see, the limbs were all trimmed up and you could see right through them. Q. What effect did the trees have upon the wind and dust from the street? A. Well, sir, it would protect the house to a'great extent. Q. It would protect the house from the dust from the road ? Now you say that looking from the windows of the house, persons were plainly visible in the street? A. Yes, sir, for eight or ten feet the trees were trimmed up. The Court: I suppose that lowering the grade did not increase the dust ? A. Yes, but the trees will be lost, and the new road will facilitate travel upon it. Q. What in your judgment is the damage done Mr. Eckfeldt by reason of this change of grade?”

Cross-examined as to competency : “ Q. Do you own any property in North Chester? Á. No, sir. Q. Did you ever buy any property there? A. No, sir. Q. Or sell any? A. No, sir. ■Q. Or buy or sell any for yourself or anybody else ? A. I never did; no, sir. Q. You never bought or sold or owned any property? A. I own property in Chester and South Chester, but not in the horough of North Chester. The Court: I hardly think he is competent. Mr. Lindsay: Do you think you are able to form a judgment as to the value of this property of Mr. Eckfeldt’s before and •after this change of grade ? A. Well, looking at it in that view of my not having bought or sold any— The Court: Suppose that this property had to be sold and you wanted somebody to tell you what it was worth and you would be bound by his judgment, could you tell whether it was the true value ? A. I don’t think I should ask anybody what that property is worth, if it were to be sold; I think I would know what it is worth myself. The Court: What would you base your judgment on? A. Well, I would form my judgment from sales that have been made in and around that vicinity within the last year. The Court: You think, then, you are competent to tell what it is worth ? A. Well, I think I know about what property is worth along that avenue to a greater or less extent. The Court: What properties beside that are you familiar with ? A. Why, the property that is owned by a company that is directly opposite to this property. The Court: Suppose they were bound to sell it at your ■estimate, would you be competent to place a value upon it?' A. That along the street I think I should know the value of. The Court: Let him testify. Mr. Harvey: Is your judgment based entirely upon what you know of sales in that vicinity? A. Well, sir, I of course judge of the value by what properties bring in and ■around this property. I judge of course from those sold around •and above this place. The Court: Do you live on the premises ? A. No, sir; I live in the city of Chester, on Broad Street. Mr. Harvey: It has been held in railroad cases not to be competent. The Court: I think I will j>ermit him to testify and give you an •exception.” Exception noted. [2]

Both witnesses testified to the value of the property before the •change of the grade and afterward.

The court charged, inter alia, as follows:

“ When was it that Mr. Eckfeldt lowered his pavement to the •established grade of 1874 ? One of his own witnesses says that it was seven or eight years ago; Mr. Eckfeldt himself is not certain when it was. The minutes of the borough show that in 1880 he •appeared before them, and that the work was all done and completed about December, 1881. If you find that Mr. Eckfeldt lowered his pavement, to comport with the grade of 1874, more than six years previous to March last, I charge you, as a matter of law, he cannot ■recover for anything more than the two-foot grade at one end and running down to nothing at the other, for the statute of limitation, which allows six years in which to bring the action, has barred his •claim.”

The plaintiff presented, inter alia, this point:

“ 1. The plaintiff is entitled, if at all, only to damages caused by the change of grade of 1884, to wit: two feet at 20th St. and running to nothing at 19th St. Ans. I affirm this point, if you find that the plaintiff assented to the fixing of that grade, or if you find that he lowered his pavement to conform to that grade more than six years before last March; and upon that I refer you to the testimony, as you must decide all these questions by the weight of the evidence.”

Yerdict and judgment for plaintiff for $1700.

The assignments of error specified, 1, 2, the rulings on the-evidence, quoting the testimony given above, but not the evidence as to value; and, 2, the answer to defendant’s point, quoting it.

John B. Hannum, with him Orlando Harvey, for plaintiff in error.

Neither of the witnesses had ever owned or bought or sold lands in the neighborhood of plaintiff’s lands, nor did either of them know of any purchases or sales of lands made in that neighborhood. Sharpless had been an assessor and obtained his opinion as to values by comparison and not from actual sales or purchases. This clearly is not enough.. Perkins was not a resident of the borough wherein plaintiff’s land lay, and had no knowledge based upon inquiry or sales and purchases. Neither of these witnesses came up to the standard as established by the cases of R. R. v. Robinson, 95 Pa. 426; R. R. v. Vance, 115 Pa. 325.

Plaintiff’s right of action accrued in 1874, when the paper change was made, and certainly not later than May 24, 1878, the date of the approval of the Act providing for the assessment of damages where streets and alleys are changed in grade in boroughs. Fifth and Sixth Streets, 4 W. N. C. 443. The question was recognized as an open one in Grape Street, 103 Pa. 121.

Geo. B. Lindsay, for defendant in error.

Both of the witnesses disclosed sufficient data of information and knowledge of the subject to bring them up to the standard set in the cases of R. R. v. Vance, supra, and R. R. v. Robinson, supra.

The statute of limitations runs only from the date of the-actual taking of the land and not from the time of the adoption of the resolution by council. Easton Borough v. Walters, 18 W. N. C., 117; Easton Borough v. Rinek, 19 W. N. C., 561; Freemansburg Borough v. Rodgers, 7 Cent. 828.

Feb. 12, 1889.

Per Curiam,

Judgment affirmed.