220 Pa. 307 | Pa. | 1908
Opinion by
The question in this case is whether an action of trespass will lie to recover damages for injuries to an abutting property owner caused by changing the grade of a public street. There was no actual taking of property and the only complaint is that the cutting down of the street in front of the properties abutting thereon caused a depreciation in the value thereof, and the contention is made that an action of trespass will lie to recover damages for such an injury. On the other hand, it is contended for appellant that the sole remedy in this and other like cases is by petition for appointment of viewers under the provisions of the act of 1878, or supplementary legislation relating thereto, to ascertain and assess the damages, if any. Prior to the constitution of 1874 where no property was actually taken it was held an action of trespass could not be maintained against a municipality, whether a city or borough, for consequential damage done to property abutting on a public street by reason of a change of grade, because no statutory remedy provided compensation to the owner for such an injury, which was held to be damnum absque injuria: O’Connor v.
It is further argued that there was no ordinance authorizing the grading of the street, and that the attempt to grade without the authority of an ordinance is in the nature of a tort, and that an action of trespass will lie to recover for any damages sustained. This position is unsound for two reasons: first, because the statutory remedy hereinbefore discussed must be followed; and, second, there was an ordinance in the present case to pave and curb the street under which there is an implied authority to do everything necessary or usual in curbing and paving, including such changes in the grade as are necessary or essential to the paving: Dillon on Municipal Corporations, sec. 797; Schenley v. Com., 36 Pa. 29 ; Lewis v. Borough of Homestead, 194 Pa. 199. Again, even if the change of grade
We conclude, therefore, that appellees have mistaken their remedy; that an action of trespass does not lie under the facts of the present case and that the statutory remedy for the assessment of damages should have been followed.
Judgment reversed and is here entered for defendant.