270 Pa. 551 | Pa. | 1921
Opinion by
Appellant states the following questions involved: “Where a railroad company condemns part of a property in Philadelphia, is it not error (1) to exclude proof that
The Act of December 27, 1871, P. L. (1872) 1390, section 3, provides that it shall not be lawful to erect any building within the lines of a plotted street, and, when the street is opened, such buildings shall be removed at the expense of the owner, “without any damages being-paid therefor.”
In Penna. Hospital v. Phila., 254 Pa. 392, 395-6, we said that “every species of property” was held “subject to requisition for public service,”—in other words, subject to condemnation under the right of eminent domain; and we there in effect ruled that subordinate property rights, directly connected with real estate thus taken, were appropriated in the condemnation. This case was affirmed on appeal in Penna. Hospital v. Phila., 245 U. S. 20, 23.
We have repeatedly decided that no damages are collectable until a legal opening occurs, by the actual taking of land (Plan 166, 143 Pa. 414, 423, and cases cited) ; but, in South Twelfth Street, 217 Pa. 362, 366, while acknowledging this rule, we recognize also that any “impairment .of value,” resulting from the plotting of a street in anticipation of its opening, must be viewed “as the immediate consequence of steps......toward the [eventual] appropriation......of the owner’s land.” When the appropriation takes place, this “impairment of value” from these preliminary steps, becomes merged, as it were, in the damages then payable, the matter being worked out practically, in assessing the damages, by simply ignoring the detrimental effect of the plotting, and treating the value of the property as though there had been no such harmful results.
While the Twelfth Street case was an instance of appropriation of land by a municipality, the early plotting and subsequent taking being by the same corporation, yet wherever real estate, containing a previously plotted but unopened street, is taken by the right of eminent domain, the principles announced in that authority must apply, or we would have the feebly disguised confiscation there referred to, and that to the benefit of the condemning corporation, which would pay for the land appropriated at its impaired value, and then, when the actual opening occurred, collect damages for such impairment; but, as previously noted, such an injustice is avoided by recognizing the fact that, although the impairment of value from the plotting is noncollectable, and no damages can be had by any one till the appropriation takes place, nevertheless, all the while, an inchoate right exists in the persons who- own the land, so far as such impairment of value is concerned, the latter, as before said, being the “consequence” of “steps taken toward the appropriation.” Therefore, where the property is condemned for public use, prior to the opening of the proposed street, by a corporation other than the one which did the plotting, this inchoate right is tacitly recognized and, in a manner, set off against any actual impairment of value caused by the plotting; but the desired result is accomplished in a practical way by treating the right as though merged in the real estate con
All of which means simply that, conceding impairment of value, since he who owned the land at the time of the plotting could hold his property till the street was actually cut through, or, if he voluntarily sold, could make the purchaser equitably discount to him the future damages which the latter would presumably collect from the municipality, therefore, when another corporation, possessing the right of eminent domain, forcibly takes the real estate in question, before the proposed street is opened, and thus, without the owner’s consent, deprives him of every opportunity to protect himself from the harmful results of the plotting, it-must be recognized that such corporation also takes the owner’s inchoate right in what the city eventually will pay to it for the damage done the property, and this it should settle for; but, as already stated, the practical method of working out the payment is the course followed by the court below.
When the facts at bar are treated along the lines suggested, there is no more difficulty about reaching the market value in this case than in South Twelfth Street. As to the rights of the respective owners, in both instances the real estate in controversy was taken, in invitum, for public use; hence, albeit the facts are somewhat different, all that is said with respect to confiscation in South Twelfth Street well applies here, on the theory already indicated.
It is, perhaps, unnecessary to state that nothing in the present opinion, be it discussion of theories or other matter, is intended to disturb in any sense the prior rulings of this court on the effect of the plotting of streets, so far as legal liability, for ensuing damages is concerned, or those which relate to assessing the market value of real estate appropriated under the right of eminent domain; but, to avoid possible future misunderstanding, we now say that it is not our purpose to
The assignments of error are overruled and the judgment is affirmed.