25 Pa. Super. 357 | Pa. Super. Ct. | 1904
Opinion by
The appellant, on December 11,1902, presented her petition to the court of quarter sessions of Philadelphia county, setting forth her ownership of a lot of ground fronting on Butler street westward of Lawrence street; and that said street had been for many years in public use as one of the highways of the city; that by an ordinance approved March 15,1892, the city authorized the revision of the lines and grades of “ Plan No. 226,” which included Butler street; that said plan was duly revised by the proper department of the city, which revision provided for the vacation of said Butler street froan Lawrence street eastward ; and that said plan so revised, with the said portion of Butler street blotted out, omitted, and vacated, was duly confirmed by the board of surveyors of the said city on January 15, 1894. The petition prayed for the appointment of
The petition having been presented to the court of quarter sessions, the authority for it must be found in the Act of April 21, 1858, P. L. 385. That statute Avhile not complete in itself, in that it made no provision for the appointment of viewers, was founded upon and assimilated into a well known and long established system; it was in this respect similar to the Act of February 2, 1854, P. L. 21, which, in its 27 thsection, provided that damages should be paid for an injury resulting from an alteration made in the grade regulations of the streets of the city, as in case of damages for opening streets. The manner of assessing damages under both these statutes was subject to the provisions of the Act of June 13, 1836, P. L. 551. The right to recover was subject to the provisions of the 7th section of that act, which limited the time within which the petition for viewers must be presented to one year after the injury alleged to have been suffered: In re Ridge Avenue, 99 Pa. 469; Philadelphia v. Wright, 100 Pa. 235. The act of 1858 is constitutional and is still in force in the city of Philadelphia: In re Centre Street, 115 Pa. 247 ; In re Howard Street, 142 Pa. 601; In re Melon Street, 182 Pa. 397.
In the lawful vacation of a street and the appropriation of the ground by owners of abutting property, in the absence of legislative provision for damages in such cases, the injury suffered by an abutting owner is not within the protection of the constitution of the commonwealth: McGee’s Appeal, 114 Pa. 470.
The right with which we are dealing is- precisely similar in nature to that conferred by the Act of February 2, 1854, section 27, P. L. 21, upon an owner whose property was injured
This is not a taking of property in the exercise of the right of eminent domain, and the decisions in which that question was involved have no application. The right to the possession of lands is not here involved, there has been no continuing trespass, and the city has not used, nor does it propose to enter upon any lands of the appellant: Hannum v. Borough of West Chester, 68 Pa. 475; McClinton v. Ry. Co., 66 Pa. 404. The only provision of the constitution which has any application to this question is found in the 21st section of article III: “ No act shall prescribe any limitations of time within which suits may be brought against corporations for injuries to persons or property, or for other causes, different from those fixed by general laws regulating actions against natural persons, and such acts now existing are avoided.” The effect of this constitutional provision upon the limitation of one year, prescribed by the general road law of June 13, 1836, was considered by the Supreme Court in a case arising under the provisions of the act of February 2, 1854, a change of grade regulation: In re Grape Street, 103 Pa. 121. The report of that case does not clearly indicate whether the original grade of that street had been established prior to 1854; it was, however, a proceeding originating in the court of quarter sessions; and the opinion by Mr. Justice Gordon clearly indicates that the ease was considered as one of damages for the regulation of a grade. The opinion of Mr. Justice Mitchell, in “ Plan 166,” 143 Pa. 414, explains this case, the record in which he had taken the trouble to examine personally, and thus states his conclusion: “ It is clear that the case was regarded as a change of a borough grade established before 1854, and therefore within the express provisions of the 27th section, no matter what construction of that section we adopt.” The case was, therefore, in every feature analagous to that with which we are now dealing. In order to make the constitutional provision applicable to the case it was necessary to establish that the one year limitation, of the
We hold that a reasonable construction of the constitutional provision must extend to a defendant, whose liability comes within the operation of the section in question, the benefit of the general limitation law with which the statute granting the special limitation comes in conflict: Grugan v. Philadelphia, 158 Pa. 337 ; Zahn v. Raihvay Co., 184 Pa. 66.
Under the Act of June 6, 1871, P. L. 1353, the legal vacation of a street is complete, when, in pursuance of an ordinance of councils properly authorizing the same, a new plan from which the street is omitted is duly confirmed : Wetherill v. Pa. R. R. Co., 195 Pa. 156; Carpenter v. Pa. R. R. Co., 195 Pa. 160; Butler Street, 19 Pa. Superior Ct. 48. The petition which the appellant presented to the court below set forth that the part of Butler street in question was duly authorized to be vacated by an ordinance of the city councils, that the plan was