268 Pa. 345 | Pa. | 1920
Opinion by
The only errors alleged in this case are that the court below erred in not giving binding instructions for defendant, and in not entering judgment in its favor non obstante veredicto. “Under these circumstances all the evidence and inferences therefrom favorable to plaintiff must be taken as true, and all unfavorable to him, if depending solely upon testimony, must be rejected”: Wiles v. Emerson-Brantingham Co., 267 Pa. 47, 49. Viewed in this light, the proofs, though covering a long period of time, are not perplexing, and the law applicable thereto, though interesting and important, is not intricate or difficult of application. The following are the essential facts established in accordance with the rule stated.
In 1797 David and William Todd, owning a tract of land, now forming the Borough of Freeport, divided it into building lots and sold them as fronting on certain
In the latter year the railroad company purchased additional property fronting on the street, and entered into negotiations with the borough officials — who acted under an ordinance passed for the purpose — resulting in a contract by which the borough agreed to vacate First street where it crossed the railroad, and the company agreed to elevate its tracks (which were to be increased to four), so as to get rid of the grade crossings in the borough, and further to pay all expenses and assume all
Plaintiff and others thereupon applied to the commission to ascertain and determine the amount of damages caused to their properties by the vacation of the street and the elevation of the railroad, hearings were had and an award made in favor of plaintiff. From this award she appealed to the court of common pleas, and, with the consent of the parties, an issue was formed to determine the amount of damages suffered by her in excess of benefits “for property taken, injured or destroyed in the construction, relocation and alteration or abolition of said grade crossings, the elevation of the railroad tracks or the vacation or partial vacation” of First street, the verdict to “also include all elements of damages submitted to and passed upon by the Public Service Commission.” Under this, plaintiff had the right to recover not only the damages to which she would have been entitled in a proceeding against the borough, but also any sum for which the railroad company was liable to her. From the judgment entered on a verdict in her favor, defendant prosecutes this appeal; and by stipulation filed agrees it will not “argue or present any questions affecting the regularity and jurisdiction of pro
As defendant obtained the contract with the borough and the certificate from the commission, by a recognition of First street as a highway, which the public had a right to use in crossing the tracks, it is reasonably certain it is estopped under the maxim allegans contraria non est audiendus (Garber v. Doersom, 117 Pa. 162; Vetter’s App., 99 Pa. 52; Edwards’ App., 105 Pa. 103); but it is not necessary to base a decision on this point, since the defense is unavailing for three additional reasons: (1st) While its authority over its right-of-way is “exclusive at all times and for all purposes, except where a way crosses it” (Pittsburgh, Fort Wayne & Chicago Ry. v. Peet, 152 Pa. 488, 492; Western Penna. R. R. Co.’s App., 99 Pa. 155; Com. v. Ruddle, 142 Pa. 144, 148) the right of passage by the public, where there is such a crossing, none the less continues (Pittsburgh, Virginia and Charleston Ry. Co. v. Com., 101 Pa. 192, 197-8; Com. ex rel. v. Phila., Harrisburg and Pittsburgh R. R. Co., 23 Pa. Superior Ct. 205, 211), even in those cases where the company by purchase of the canal from the State owns the fee of the property: Pennsylvania R. R. Co. v. Duquesne Borough, 46 Pa. 223; Book v. Pennsylvania R. R. Co., 207 Pa. 138. Defendant’s fee is indeed no higher than the fee of every abutting owner, the valuable right, so long as it exists, being the right of passage, whether of defendant over its tracks or the public over the street. Since the canal originally, and,
It is undoubtedly true that, prior to the adoption of the present constitution, a property owner, whether abutting or otherwise, could not recover damages for the vacation of a street, and no such right is given by that instrument (Howell v. Morrisville Borough, 212 Pa. 349); but it is equally true the legislature may impose such liability upon a municipality (In re Vacation of Centre Street, 115 Pa. 247; In re Vacation of Howard Street, 142 Pa. 601; Hare v. Rice, 142 Pa. 608), and in so doing may determine to what class of owners it shall be given. If it is extended to those whose property is “taken, injured or destroyed” by the vacation, recovery can be had if the street in front of the property thereby becomes a cul-de-sac as it does here, (Mellor v. Phila., 160 Pa. 614; In re Melon Street, 182 Pa. 397; Lewis v. Borough of Homestead, 194 Pa. 199; Chambersburg Shoe Manufacturing Co. v. Cumberland Valley R. R. Co., 240 Pa. 519; Ruscomb Street, 33 Pa. Superior Ct. 148), and hence the only remaining question is: Has the legislature imposed such liability?
By the Public Service Company Law of July 26, 1913, P. L. 1374, it is expressly provided that “The compensation for damages which the owners of adjacent property taken, injured or destroyed may sustain in the...... abolition of any such [grade] crossing......shall, after due notice and hearing, be ascertained and determined by the commission and......shall be borne and paid ......by the public service company or companies or municipal corporations concerned......as the commission may......determine, unless the said proportions are mutually agreed upon.” In the present case the railroad company agreed to pay all the damages. It will be
The judgment of the court below is affirmed.