Harp v. Glenolden Borough, 28 Pa. Super. 116

28 Pa. Super. 116 | Pa. Super. Ct. | 1905

Opinion by

Porter, J.,

This case was tried in the court below on an appeal by the borough from the report of a board of viewers, appointed upon the petition of the plaintiffs under the provisions of the Act of May 24, 1878, P. L. 129, to assess the damages caused by a change of the grade of a part of the highway upon which plaintiffs’ land directly abutted. There was no dispute as to the conditions which had existed upon the ground for many years prior to the improvement of the highway undertaken by the borough, nor as to what the borough actually did, nor as to its authority in the premises. The highway had been laid out over fifty years ago at the natural grade, of the width of sixty feet, and was known as the “ Great Southern Post Road; ” the Darby and Ridley Turnpike Company, by virtue of the provisions of the Act of April 14, 1851, P. L. 617, had acquired the right to locate a turnpike road fifty feet wide upon and along the said Great Southern post road, and all the rights of the turnpike company had subsequently become vested in the Chester and Darby Telford Road Company, which was incorporated on February 3,1890, under the provisions of the Act of April 29, 1874, P. L. 73. The location of the right of way of the Chester and Darby Telford Road Company, fifty feet in width, through the borough of Glenolden, was in the center of the line of the Great Southern post road; the remainder of the Great Southern post road, being a strip five feet in width on each side, was a public highway and had become subject to the full control of the borough. The turnpike company had many years ago graded a road about forty feet wide along the middle of its right of way, thus leaving a strip five feet wide on each side within its right of way ungraded, so that between the property line on each side and the graded part of the turnpike there was a strip ten feet wide which remained at the natural grade. The borough entered into an agreement with the turnpike company, fixing the lines of the right of way of that corporation, and haying duly fixed the grade of the curb lines, in pursuance of on ordinance duly approved August 31, 1901, proceeded to cut down that part of the highway which had remained at the natural grade to a level practically the same as that of previously graded parts of the turnpike. The jury found that the change made by the borough damaged the property of the plaintiffs, and that question must be accepted as settled.

The only ground upon which the defendant contends that this judgment should be reversed is, that because the turnpike company had over thirty years ago graded a road of the width of forty feet, within the lines of its fifty feet right of way, the borough has now the right to reduce the entire highway to that grade, without liability for damages to property injured, for the reason that the injury to the property occurred at the time the original grading was done. The argument of the plaintiffs is that the turnpike company had the right to fix the grade of its road and that when it graded a road of the width of forty feet upon the line of its right of way, that was a legal establishment of the grade for the whole right of way, and must so remain for all time. The argument is not well founded, for the reason that the turnpike company was not bound to grade a road of the entire width of its right of way; when it graded a road of the width of forty feet it had done more then the law required of it. There was no evidence that this turnpike company had done or contemplated doing any additional grading since the adoption of the constitution of 1874, under the provisions of which owners of property became entitled to compensation for injury resulting from the construction or enlargement of the works of corporations invested with the privilege of taking private property for public use. There is, however, a further and final answer to the contention of the appellant; the turnpike company had no right in or authority over that part of highway which was without the lines of its own right of way, and no matter what grade the company may have established for its turnpike, it had no power to fix a grade for the five feet of highway immediately adjoining the property of the plaintiffs.

The rejection of the “ Plan and Profile of Darby and Chester Plank Road,” offered in evidence, worked no injury to the appellant. There was no dispute as to the location of the highway, and the plaintiffs conceded the right of the borough to grade it; they were claiming damages for an injury resulting from a lawful exercise of corporate power. The appellant contends that the plan would have shown the grade which had been adopted by the turnpike company, but for such a purpose the plan would not have been- competent evidence, unless accompanied by evidence showing that it had been adopted by the corporation. The municipalities of the commonwealth are by statute vested with authority to regulate or establish paper grades, of which those who deal with the highways are bound to take notice, but this power is not delegated to turnpike companies or corporations, to the records of which the public have not access. Property owners are not bound to take notice of the changes of grade which a turnpike company may propose to make at some time in the future, until such time as the company proceeds to carry its purpose into execution.

There can be no question that the work undertaken by the borough was a change of the grade of the highway; if the property of the plaintiffs was injured they were entitled to the compensation secured by the constitution, and the appropriate remedy was furnished by the act of 1878: In re Brady Street, 99 Pa. 591; Borough of New Brighton v. United Presbyterian Church, 96 Pa. 331; Jones v. Bangor Borough, 144 Pa. 638; New Brighton Boro. v. Peirsol, 107 Pa. 280; O’Brien v. Philadelphia, 150 Pa. 589; Rodgers v. Philadelphia, 181 Pa. 243.

The judgment is affirmed.