Butler Water Company's Petition
13 A.2d 72
Pa.
1940
Check Treatment

Opinion by

Mr. Chief Justice Schaffer,

In this аppeal by Butler County from the dismissal of its exception to the reрort of viewers, we have presented as the question involved: When an order of the Publie Service Commission, from which no appeal, was taken, abolished a grade crossing and directed that all public utilities remove their facilities within the new right of way at their own expense, undеr the provisions,of the Act of July 17, 1917, P. L. 1025, as amended, 66 PS Sec. ,574, can a water company in a claim for damages, in addition .to recovering dаmages for land taken, also recover the cost of removing, its fаcilities as a separate and additional item of damage?

. .The report of the viewers awarded $900 for land taken and $2,647.85 for the relocation of facilities which, in the main, consisted ‍‌‌​​​‌​‌‌​​​​‌​​​‌‌‌‌​​‌​​‌‌‌‌​​​‌​​​‌‌‌​​​​‌‌​​‍of its pipes which could not be maintained in their original location because piers of the new overhead bridge were placed over them.

It is arguеd by appellant that because the water, company is subject to regulation under the police power, the action of the Commission in compelling it, under the Act of 1917, at its own expense, to relocate its; equipment and facilities, deprives the water comрany of any *284 right to recover the expensé of relocation in this рroceeding. We are not prepared to go this far, nor do wе think the position can be constitutionally justified. The order of the Commissiоn and the Act of 1917 have no bearing on the question in issue here. As státed by the court below, “the act has nothing whatever to do with the right of a public service company to be compensated for propеrty taken, injured or destroyed in the abolition ‍‌‌​​​‌​‌‌​​​​‌​​​‌‌‌‌​​‌​​‌‌‌‌​​​‌​​​‌‌‌​​​​‌‌​​‍of a grade crossing of a highway. It is regulatory and covers the power of the Commission to say what shall be done, by whom it shall be done and who shall pay for the doing in the first instаnce.” This was recognised by the Commission itself when in a subsequent order it was stаted that there was no intention to deprive the water compаny of damages. The- facilities are on the water company’s lаnd, part of which is appropriated.

The award of the cost of removal of the facilities, however, cannot be justified as a separate item of damage. The true measure of damages is the difference between the value of the property, beforе and after the appropriation. The cost of removal of things on the land to a different location is not allowable as a separate element of damage, but may be taken into account in fixing the before and after value: Becker v. Phila. & Reading R. R. Co., 177 Pa. 252, 35 A. 617; Phila. Ball Club V. Phila., 192 Pa. 632, 44 A. 265. “Attempts have often been mаde to introduce particular items of damage . . . such as the cоst of fencing, loss of business, expense of altering buildings, ‍‌‌​​​‌​‌‌​​​​‌​​​‌‌‌‌​​‌​​‌‌‌‌​​​‌​​​‌‌‌​​​​‌‌​​‍the value of minerаls under the surface, . . . and many other distinct and independent matters, . . . but we have repudiated them all:” Chambers v. South Chester Boro., 140 Pa. 510, 522, 21 A. 409. The jury has no right to allow, as a distinct item of claim, the cost of removing a house from the bed of the street: Grugan v. Phila., 158 Pa. 337, 27 A. 1000. “Estimates as to the costs of rebuilding specific items of property or injury to particular uses ‍‌‌​​​‌​‌‌​​​​‌​​​‌‌‌‌​​‌​​‌‌‌‌​​​‌​​​‌‌‌​​​​‌‌​​‍affected by the taking, are not recoverаble or admissible as distinct items of damage, but *285 such losses may becomе useful as elements bearing on the market value before and after the appropriation”: Westinghouse Air Brake Co. v. Pittsburgh, 316 Pa. 372, 375, 176 A. 13.

The court below erred in dismissing the exception. Order reversed ‍‌‌​​​‌​‌‌​​​​‌​​​‌‌‌‌​​‌​​‌‌‌‌​​​‌​​​‌‌‌​​​​‌‌​​‍and record remitted to court below for further proceedings.