It is important to keep in mind the precise question for decision: whether the evidence supports the finding made by the learned court below; the question is not whether this court would have made the same finding, but whether there was evidence from which the court below could make it.
The appellants complain that the court below assessed their property too high for the year 1941. The circumstances are very unusual. The property is in the center of Philadelphia's business district. The building *Page 231 has little value. The lot has a frontage of twenty-six feet on the south side of South Penn Square, extending eastward from a point four feet east of 15th Street. Such a lot, only four feet from 15th Street, is worth more per front foot than one in the middle of the block. For convenience, in the valuation of city lots, the term "corner influence" has been used to describe this element of value, though corner influence itself is composed of a number of elements and varies with location. As appellants' lot is only four feet from the corner, it, and any structure on it, are more accessible from both 15th Street (a very much travelled street) and South Penn Square than property in the middle of the block or farther from the corner. Such a lot only four feet from the corner is not only enhanced in value by the element of accessibility from two streets, but because of that accessibility, is to be preferred over a property away from the corner for light, air, police and fire protection, and (in a business section) for advertising purposes.1 In valuing appellants' property, the court should consider, as an important circumstance in the problem, that the four feet between it and 15th Street cannot reasonably be developed unless both it and appellants' property are acquired in common ownership. The fact, if it should be a fact, that neither owner has been willing to put his property to such use as the location reasonably suggests, is no reason why the public should be deprived of the contribution to taxes which land so situated and appropriately improved should pay. No central property, allowed to lie undeveloped, should, by reason of that fact, escape contributing its proper proportion to the expense of government. The only restriction imposed by the constitution is the requirement of uniformity. If property is assessed uniformly with other property of like character, the constitutional requirement will be *Page 232 satisfied. The small income which the appellants receive from their unimproved property in the heart of the business district has very little, if anything, to do with the assessment in the circumstances of this case. The learned judge concluded that appellants' property had not been assessed uniformly with other lots in South Penn Square and therefore corrected the error. As there is evidence to support his conclusion, it must be accepted. He considered all the evidence and reduced the assessment of $209,000, made by the Board of Revision of Taxes, to $182,000. The question now should be whether there was legal error in the trial, not whether this court, if authorized to sit as a super board of revision, would have fixed the same or a different amount.
I cannot interpret the record as the majority appears to understand it. The majority opinion quotes and appears to predicate its conclusion on an assessor's testimony: "Well, this particular lot, 1432-34, is exactly the same size as the subject property. That particular land . . . is now assessed at $131,000 . . . They are both assessed from South Penn Square and their value from South Penn Square is $131,000. But this particular property is situated four feet from the corner. There is now a corner influence of $78,000. . . ." The documentary evidence in the record shows that the witness was mistaken. The parties submitted to the court, after the witnesses were examined, a statement which the learned judge ordered made part of the record and which he said he considered in deciding the case. This "columnar statement," which is referred to in the majority opinion and appears at 117a in the record, shows that premises 1432 were assessed at $142,000 for 1941, and not at $131,000, as the witness said. The majority opinion also states: "There is some confusion in the record as to what amount the court allowed for corner influence, $1,540 or $1,962 a front foot. This was occasioned by an error of the court in concluding that the agreed basic assessment, before corner influence, was $5,460 a *Page 233 front foot ($141,960) while in fact it was $5,038 a front foot ($131,000). This is shown by the testimony of the assessor, who made the assessment and should know most about it; he said this property and that next door were alike and assessed at $131,000, to which he added $78,000 against the instant property for corner influence. And this is conclusively proven by simple mathematics. If the assessor's $78,000 is added to the $141,960 the result is bound to be $219,960. All agree the assessment was $209,000. But if the assessor's $78,000 is added to the $131,000, which he says was the base, the result is $209,000 — the exact amount of the assessment. Since the court reduced the assessment by $27,000, from $209,000 to $182,000, and did not disturb the basic rate, he actually took off $1,038 a front foot for corner influence, leaving the assessment for that purpose, $1,962 a front foot." I do not think the learned trial judge made any mistake "in concluding that the agreed basic assessment before corner influence was $5,460 a foot front ($141,960) while in fact it was $5,038 a front foot ($131,000)." That he was correct appears from the "columnar statement" from which I now quote: "As to the properties 1432, 1436 1438 inc. which properties do not extend to a rear street, the basic rate of $6,500 is mathematically reduced to $5,460 per front foot which sum is multiplied by the width of the lot, to which is added the proportionate amount of corner influence. Thus all of the properties were uniformly treated as to land value." We should not accept, as the majority opinion accepts, the erroneous statement of the assessor in the face of the documentary evidence showing that the assessment was $142,000. We should review the case, as the learned judge decided it, by accepting the values as given in the statement. As he reduced the assessment to $182,000, it is only $40,000 more than the assessment of premises 1432-34, and if that $40,000 is attributed to the corner influence it would be only $1,538 a front foot, *Page 234 a figure which I think this court ought not say is not supported by evidence.
The majority sets aside the assessment and directs the court below to make another assessment, and this is done, as I understand the majority to hold, because the weight of the evidence is against the assessment. The only disputable element seems to be the value attributable to corner influence, $40,000, as fixed by the court. I find no justification in the opinion of the majority for the statement that the weight of the evidence is against the learned judge's finding. I assume, when this court uses the term "weight of the evidence" that the court means to apply the same standard as was applied in similar cases in which we said, "In an appeal from an assessment for taxes the findings of fact of the court below have great force. These findings will not be set aside unless clear error is made to appear": American Academy of Music'sAppeal, 321 Pa. 433, 184 A. 657; Westbury Apartments, Inc.,314 Pa. 130, 170 A. 267. My assumption that the two statements of the rule mean the same thing is based on the proposition that we never intended to apply different rules to the same class of cases.
What does an examination of the record show with respect to weight of evidence? The majority agrees, as I understand it, that the value of appellants' property is enhanced by its nearness to the street intersection, and that some value must be attributed to that influence. That value must be added to the basic front foot value of $5,460, which was the value used by the learned judge as appears in the memorandum signed by him in making the columnar statement a part of the record. When he increased the foot front ground value by $40,000 to represent the enhancement resulting from location, he kept well within the evidence. I think the weight of the evidence is all with the finding of the learned judge. On the side of the city was (1) the assessment of the Board fixing $209,000 which made out a prima *Page 235 facie case; (2) the evidence of the experts Harrison and Lyness who attributed $3,000 a front foot, to corner influence. On appellants' side was the evidence of their expert, who testified that the fact that appellants' lot was only four feet from the corner in the center of an important commercial section of the city, added nothing to its value. It is not surprising that the learned judge rejected the conclusion of appellants' expert that proximity to 15th Street added nothing of value. In the exercise of his best judgment he cut the allowance claimed on behalf of the city almost in two. It certainly cannot be said that there is no evidence to support his conclusion. Where, then, and how does clear error appear? By what process of reasoning does the majority reach the conclusion that the weight of evidence is not with the learned judge's finding?
One more consideration may be mentioned. How shall the court below deal with the subject in the retrial which has been ordered? I cannot find that the majority has supplied any standard to guide that court. How shall a figure be ascertained that will meet the approval of this court in the absence of some statement of a rule to be applied? Hitherto, the rule has been that the finding will not be set aside "unless clear error is made to appear." It is well settled that in trials in equity, a chancellor's findings of fact, affirmed by the court in banc, have the effect of a verdict of a jury and will be accepted here: Purman v. Johnson, 343 Pa. 645, 22 A.2d 722. It is also the rule in trials by the court where a jury is waived:Boocks v. Cochran, 347 Pa. 36. By applying that rule, I think the assessment made by Judge FLOOD should be affirmed.
Mr. Justice HORACE STERN and Mr. Justice ALLEN M. STEARNE join in this dissent.
1 Some proof of this is that anyone on 15th Street may now see the large advertisement on the west party wall of appellants' building. *Page 236