Edsall v. Jersey Shore Borough

Road law — Boroughs—Change of grade — Paving—Damages. Where a street railway company in laying its tracks on a borough street changes the grade of the street without authority from the borough, but a few years thereafter the borough adopts the new grade and lays a pavement on the street, evidence as to the effect of the change of grade on the value of abutting properties will be confined to the date of the adoption of the new grade by the borough, and not to the date of the construction of the railway. In a proceeding to assess damages for such a change of grade, the improvement caused by the paving may be taken into consideration. In a proceeding to assess damages it is proper to admit evidence that the change was a part of a general scheme of improvement. The borough is not bound by the acts of individual members of a borough council unless such acts are done by express authority. Official authority or power must be exercised not only in the manner prescribed by law and in the name of the public, but also when exercised by an official board or body, by that board or body acting as such at a meeting duly called and authorized by law and at which under the law or regular rules of procedure, particular action can be taken. Where a street railway company in laying its tracks changes the grade of a borough street, a profile map produced by an official member of the railway company, in a proceeding to assess damages, is properly excluded, where there is no evidence that the map had been approved by the borough, or that the borough council as a body had ever authorized the railway company to change the grade. In a proceeding by a property owner against a borough to assess damages for change of grade of a street, the court commits no error in rejecting evidence of the cost of raising plaintiff's house and lot to the new grade. Elkin/J., dissents.

Appeal, No. 185, Jan. T., 1907, by plaintiff, from judgment of O. P. Lycoming Co., Sept. T., 1907, No. 58, on verdict for defendant in case of Annie A. Edsall v. The Borough of Jersey Shore. Appeal from award of viewers. At the trial when P. L. Barker was on the stand the following offer was made: Counsel for plaintiff offer to prove by the witness on the stand that he is a civil engineer and supervisor of purchases and buildings upon the New York Central Railroad ; that it is his business to give estimates on buildings; that the Edsall building requires to be raised to grade, and to prove by the witness the cost thereof, so far as the witness can testify. Objected to by counsel for defendant for the reason that the criterion or measure of damages is the market value of the property, affected by the injuries complained of; that the witness is unable to give the market value of the property in question before or after the alleged change of grade, and that therefore the offer now made is irrelevant, incompetent and immaterial. The Court: When a witness goes upon the stand and is able to give the market value of property, both before and after the change, it is competent to show by him of what items his estimate was made up, but to introduce it as a distinct proposition, independent of the question as to whether or not the change affected the market value of the property as a whole, is a different proposition. For the present the objections are sustained, to which the plaintiff excepts, and at her request an exception is noted and bill sealed. [6] When F. T. Wilson, a civil engineer of Jersey Shore Borough, was on the stand he was asked this question : “ Q. (By Mr. Munson) Let me understand; these grades you have talked of were all between Main street and Depot street ? A. Yes, sir. Q. Now the grade past Mrs. Edsall’s property? A. I graded everything clear on up to the end of the street, graded everything for the street car company, but the council had approved of all these things, different members of it. Sometimes they would send a committee of one, two or three, whatever it might be, to settle on these things, to see whether there were any disagreements. On several occasions there were disagreements, but we settled them up by compromise or otherwise. I haven’t got my working plans here.” Counsel for the defendant object to so much of the testimony of the witness on the stand as refers to any approval by individual members of council ds not binding on the borough of Jersey Shore. The Court: We sustain that objection. One member of council cannot bind the body, unless he is authorized to do so by the body for the purpose of doing what he undertakes to do; to which the plaintiff excepts and at her request an exception is noted and bill sealed. [4] Thomas J. King, superintendent of construction for the Jersey Shore Electric Railway Company, was asked this question : “ Q. In what building does the council of Jersey Shore borough meet ? A. In the borough building there. Q. Were you notified of their meetings from time to time and were you invited to be there? A. I was invited to attend meetings. Q. By the borough council ? A. Some of the borough council. Q. In pursuance of such invitation were you present with your profile map on this occasion? A. Yes, sir. Q. What action did council take upon the profile map submitted by you ? ” Counsel for the defendant object, because the best evidence is the record of council itself. The Court: The objection sustained; to which the plaintiff excepts and at her request an exception is noted and bill sealed. [5] J. The court erred in rejecting the offer of proof by the witness Daniel Smith, which offer, objection thereto and ruling of court thereon is as follows: “Q. You were asked on the stand this morning the cost of raising the house of Mrs. Edsall, the actual cost of it; have you figured on the cost since ? A. I have figured on it some, yes, sir. Q. IIow much would it cost to raise the house to grade ? ” Counsel for defendant object to the question and ask counsel for plaintiff what he proposes to prove by the witness on the stand. Counsel for plaintiff offers to prove by the witness on the stand and others, the cost of raising the property of the plaintiff to grade and filling the lot. Eor the purpose of giving the jury information as to the damage, or approximate damage, that may have been sustained by the plaintiff. Counsel for defendant object to offer : 1. Because this is not the proper means of ascertaining the plaintiff’s damages ; that evidence as to the cost of filling the plaintiff’s lot, or raising her residence, cannot be allowed as part of the damages recoverable. 2. Because incompetent, irrelevant and immaterial. The Court: The objections are sustained and the evidence rejected ; to which the plaintiff excepts and at her request an exception is noted and bill sealed. [7] Plaintiff presented these points: 1. If the jury find from all the evidence that the grade of Allegheny street in front of the plaintiff’s property was changed by the defendant in the fall of 1902, then the plaintiff is entitled to recover such damage as she may have suffered by reason of the change of the grade of the street as of that date. Answer: The evidence on the part of the plaintiff being that the grade of the street was changed without authority of the councils of the borough of Jersey Shore, in the fall of 1902, but that the change of grade thus made was substantially adopted by the defendant when the grading of the street was done preparatory to paving the same, in the year 1905, the damage, if any, to the property of the plaintiff occasioned by the change of grade must be estimated as of the time when the grading was completed and the pavement thereon laid, taking into consideration the market value of the property immediately before the grading was commenced in 1902, and the market value of the property when the grading and paving of the street were completed, in 1905. [1] 2. If the jury find from the evidence that the defendant commenced the change of grade of Allegheny street in front of plaintiff property in September, 1902, and such change of grade was not completed until 1905, then the plaintiff is entitled to recover the damage which she sustained from the defendant as of the date of the commencement of said change of grade. Answer : This point is refused for the reasons above given in the answer of the court to the plaintiff’s first point. [2] 3. That in the assessment of damages for the injuries sustained by the plaintiff’s property, by the change of grade of Allegheny: street in front of her property by the defendant, any benefits conferred upon the plaintiff’s property by reason of the subsequent paving of Allegheny street by the defendant cannot be taken into consideration in this action and such benefit is not a set off against nor can it be used in mitigation of the damages which the plaintiff is entitled to recover by virtue of the change of the grade in front of her property, which she is seeking to recover in this proceeding. Answer: This point is refused. [3] Yerdict and judgment for defendant. Plaintiff appealed. Errors assigned were (1-3) above instructions, quoting them; (4-7) rulings on evidence, quoting the bill of exceptions.