31 Pa. Super. 375 | Pa. Super. Ct. | 1906
Opinion by
Dry Gap Run, a natural water course, ran along Twenty-fourth street from Ninth avenue to Sixth avenue, and then turned to the south. Owing to its having become contaminated by sewage, and perhaps for other reasons, the city constructed a sewer in the street, and turned the stream into it, but did not at once close up the old channel. It is alleged that a vent was placed in the sewer, so that in times of flood, when the sewer should be insufficient to carry the whole volume, the surplus could escape into the old channel and be carried off in that way. Afterwards, in the latter part of 1894, or early part of 1895, the city filled the old channel, which was at one side of Twenty-fourth street, and as a substitute curbed the street on both sides, and lowered the grade in the center, or, as one of the witnesses describes it, “concaving it, making the center of the street the channel instead of the side.” The description of what was done, testified to by the street commissioner, will aid to a correct understanding of the legal questions for decision. He says: “ By resolution of council we graded Twenty-fourth street and made it in shape, kind.of a dip to carry the water down in case of an overflow, made it deeper in the center than at the sides, so in case of an overflow the water would run down Twenty-fourth street.” The evidence as to the effect of these changes upon abutting and neighboring properties is conflicting, but there is evidence from which a jury could find that they were affected injuriously thereby. In this action, brought in 1900,. the plaintiff, who was the owner of several houses and - lots in the vicinity, claimed on the trial that they were injuriously affected, in that, since the city filled the bed of the
It is to be observed that this was an action of trespass. The question is not whether the plaintiff could recover for the alleged injuries in the method provided by the statutes where a municipal corporation injures private property in the changing of grade of streets, and changing water courses. By suing in trespass the plaintiff elected to treat the defendant’s action as tortious and must prove that it was so, or fail in his suit: Cooper v. City of Scranton, 21 Pa. Superior Ct. 17 ; Robinson v. Boro. of Norwood, 27 Pa. Superior Ct. 481. In the first case our Brother Porter stated the rule and the reasons for it as follows : “ The ascertainment of the damages and benefits arising from the execution of a public work by a municipality, is a matter in which the public has, and many private individuals may have, an interest. It is important that those who are to receive compensation for injuiies, and those who are to pay for benefits accruing to the property, should all be heard before the same board of viewers, in order that all conflicting rights may be considered. The measure of damages in such a case is different from that which applies in an action of trespass. The benefits to the property as a whole must be taken into consideration, in connection with any injury that may result to land or buildings. If each individual owner of land upon a newly graded street were permitted to settle his rights in an action of trespass, the result would lead to confusion and be prejudicial to the rights of the public. When the injury to property is such only as is the direct, immediate and necessary or unavoidable consequence of the act of eminent domain itself, irrespective of care or negligenee in the manner of the execution of the work, a proceeding before viewers is the appropriate remedy: Denniston v. Philadelphia Company, 161 Pa. 41; Stork v. Philadelphia, 195 Pa. 101.”
So in the second case it was held that where a borough has
The foregoing summary of the evidence pro and con is sustained by the record, and under the law applicable to the facts the jury could have found, there might be a recovery of damages for the injury to the plaintiff’s premises directly traceable to the closing of the vent. Mere absence of notice does not necessarily absolve a city from the charge of negligence. Its duty to keep its sewers in repair is not performed by waiting until notified that they are out of repair, and repairing them only when the attention of the officials is called to the damage resulting from their dilapidation or obstruction; but it involves the exercise of a reasonable degree of watchfulness in ascertaining their condition from time to time. “Where the defect is observable and has existed so long as to become notorious, the city is as liable as if there had been express notice. The city is presumed to have knowledge of an open defect after a reasonable time has elapsed for its ascertainment and removal: ” Vanderslice v. Philadelphia, 103 Pa. 102; Boehm v. Bethlehem Boro, 4 Pa. Superior Ct. 385. Our conclusions upon this branch of the case are: first, the questions of the city’s negligence in this particular, and of consequent injury to the plaintiff, were questions of fact, whicli fairly arose upon the evidence and'were properly submitted to the jury; second, to the extent, and only to the extent, that the backing of water and sewage through the plaintiff’s drains in consequence of the negligence of the city in this particular, contributed to the injury complained of, the city is liable;
Manifestly the alleged injury resulting from permitting the relief vent in the sewer to be closed was not permanent in its nature; in other words, the presumption is, that the negligent condition will be remedied by the city, if that has not been done already, not that it will be permitted to continue permanently. Therefore the damages are to be assessed accordingly. The ordinary rule applicable to such case is that the cost of restoring the premises to their original condition, if that can be done, together with compensation for the loss or impairment of the use of the premises meantime, is the measure of damages. In the present case, having regard exclusively to the only ground of recovery that exists under the evidence, we cannot see that the cost of putting in traps and cementing the cellar floors would be the proper measure of damages, unless' that would be less than the proportionate part of the loss in rental value attributable to this particular injury, in which latter case such cost might be. This is as far as we need go in discussing the question of the measure of damages. In view of our conclusions upon the main questions separate discussion of each assignment of error is unnecessary.
The judgment is reversed, and a venire facias de novo awarded.