79 Pa. Super. 381 | Pa. Super. Ct. | 1922
Opinion by
This appeal grows out of the same improvement referred to in No. 163, April Term, 1922, [the preceding case] but raises an entirely different question. By agreement with the Borough of Freeport, and with the approval of the Public Service Commission, the Pennsylvania Railroad Company elevated its tracks in said borough and, in doing so, constructed an embankment about eighteen feet high, supported by a concrete wall along either side of its right-of-way. By the terms of the agreement certain streets which formerly crossed the railroad tracks at grade were vacated, wholly or in part, within the right-of-way lines of the railroad company. See Donnelly v. P. S. C. & P. R. R., 268 Pa. 345. Certain other streets, among them Fourth Street, were not vacated at all, but the tracks were carried over them by overhead concrete slab bridges. The bridge at Fourth
The plaintiffs are the owners of a tract of land situate at the northwest corner of Fourth and Water streets, composed of parts of lots 19 and 20 as laid out on the plan of lots of William and David Todd, prior to the incorporation of said borough. It extends along Water Street ninety-nine feet and from Water Street along Fourth Street fifty-two feet, where it narrows to a width of sixty-six feet, and extends of that width northward to the right-of-way of the Pennsylvania Eailroad Company, formerly the old Pennsylvania canal. A two-story brick house is located on the lot fronting on the railroad company’s right-of-way, about six feet from the concrete embankment built thereon, and thirty-three feet from Fourth Street. A three-story building, the Commercial Hotel, occupies the thirty-three feet between the plaintiffs’ house and Fourth Street and extends out a foot or two nearer the railroad company’s right-of-way. A frame stable is built at the corner of Fourth and Water streets and occupies the whole of the plaintiffs’ frontage on Fourth Street and part of said frontage on Water Street. At the hearing before the Public Service Commission, following the approval of the railroad company’s plans of improvement, the plaintiffs presented a claim for damages but were denied any compensation. They thereupon demanded a jury trial and appealed to the Court of Common Pleas of Armstrong County, in accordance with the provisions of article VI, section 17, of
The Public Service Company Law of 1913, P. L. 1374, article V, section 12, and its amendment of July 17,1917, P. L. 1025, provide that the compensation for damages which the owners of adjacent property, taken, injured, or destroyed may sustain in the construction, relocation, alteration, or abolition of grade crossings, shall be ascertained and determined by the commission, with provisions for an appeal from its determination to the court of common pleas of the proper county. It will be noted that the term used is adjacent, — not abutting, — property taken, injured, or destroyed, etc. The appellees contend that this provision established a departure from the law previously in force in this State and entitles anyone whose property is near or adjacent to a grade crossing to recover the damages which a jury may award him by
Let us, then, examine the authorities and see to what extent an adjacent property owner, as distinguished from an abutting property owner, may recover damages because of the construction, enlargement or improvement of public works.
(1) Adjacent property may be injured by the vacation of a street. Previous to the Acts of May 28, 1913, P. L. 368, and June 27, 1913, P. L. 633, it was the law of the Commonwealth that the vacation of a highway or street was not an injury even to abutting land owners within the provision of the Constitution requiring compensation, and in the absence of special legislative provision none could be recovered: Howell v. Morrisville Boro., 212 Pa. 349, 352. But wherever there was such special legislative provision, it applied to adjacent property owners no less than abutting property owners where the vacation resulted in a cul-de-sac and left the property but one mode of access to the general system of streets in the vicinity, whereas before the vacation there were two: In re Melon St., 182 Pa. 397; Walsh v. Scranton, 23 Pa. Superior Ct. 276; Ruscomb Street, 33 Pa. Superior Ct. 148. But even this rule did not apply to adjacent property owners where there was an intersecting street between the property and the street vacated and the effect of the vacation was not to cut off access to the general system of streets from any direction but only made it necessary to travel a short distance farther to reach them: Ruscomb Street, supra, and 30 Pa. Superior Ct. 476; Edgemont Street, 66 Pa. Superior Ct. 142; 13 R. C. L. 232. The principle enunciated in the Melon Street proceeding has no application to the instant case, because there was no vacation of any part of Fourth Street. The placing ‘of concrete columns supporting the overhead crossing in the roadway of the street and at the curb lines, did not
(2) Damages have likewise been allowed adjacent property owners where physical access to the property has been substantially interfered with or prevented by the construction of the improvement complained of.
(3) Adjacent property owners are also entitled to damages where there has been a change of grade affecting the drainage on their property. See: Chatham St., supra; Cooper v. Scranton City, 21 Pa. Superior Ct. 17. This does not apply here because the jury has determined that the plaintiffs’ property was not injured by the change of grade.
(4) We have not been able to find a case where it has been held that an adjacent property owner, unless he is an abutting property owner, is entitled to damages for interference with light and air, or access to his property by pillars supporting an elevated structure; and not even an abutting property owner unless the construction thus interfering with such access, or light and air, is on ground, the fee to which belongs to him, subject to the easement of passage over it as a street. Thus in P. R. R. v. Duncan, 111 Pa. 352, the pillars and elevated structure were on the plaintiff’s side of Filbert Street, interfering with the access to and use of the street in front of his property. To same effect see: Socket v. Norristown Transit Co., 62 Pa. Superior Ct. 542; Chester County v. Brower, 117 Pa. 647; Lafean v. York County, 20 Pa. Superior Ct. 573; P. & R. Co. v. Patent, 17 W. N. C. 198. In Jones v. R. R., 151 Pa. 30, the plaintiff owned a property at the northeast corner of two intersecting streets. The railroad company erected an overhead crossing running from the northwest to the southeast corner of said streets and overhanging part of the street to the center of which the plaintiff owned title in fee. It was held that the exclusion of light and air to any appreciable extent by the overhead bridge entitled him to damages, but the court said, “The only legal ground of complaint
At the point where the overhead crossing was erected at Fourth Street the plaintiffs were not abutting property owners; their lot was thirty-three feet west of the crossing and over one hundred feet south of it. The bridge supports imposed no additional servitude on any property owned by them. No disadvantage or inconvenience was thereby created special to the plaintiffs or that did not apply as well to the traveling public. In Ogontz Ave., 225 Pa. 126, 130, it was held that no damages can be awarded to a nonabutting property owner where there has been no change in the surface conditions, where access, or right of way, or drainage, or some other existing right of property has not been disturbed. In Robbins v. Scranton, 217 Pa. 577, p. 583, the court held that “unless the injury is so obvious as to admit of comparatively easy calculation as to the extent of the diminution of the value of the property, it may not fairly be considered as covered by the Constitution.” It is in connection with these qualifications that Penna. Co. for Ins.,
As before stated, the testimony in this case shows that there has been no vacation in whole or part of Fourth Street or Water Street; that there has been no change of surface conditions which interferes with plaintiffs’ access to their property; that there has been no change of grade which has affected the drainage of plaintiffs’ property injuriously; that the overhead bridge at Fourth Street and the columns supporting it are not located upon property to which the plaintiffs have title in fee and constitute no additional servitude upon their land. Under the circumstances the injury, if any, was not so proximate, immediate and substantial as to justify an award of damages. This case is one which shows the wisdom, if not the necessity, of such a rule. Here we have a house located six feet from a concrete wall eighteen feet high, which shuts off to a considerable extent light and air from the north, but for which plaintiffs are not entitled to damages as it is located upon the railroad company’s own right-of-way. [See preceding case.] We have adjoining this house on the east a hotel building which extends farther north and is a story higher, cutting out light and air from the east, but constituting no legal injury to the plaintiffs’ property because it is erected on land belonging to the adjoining owner; and notwithstanding these conditions the jury award the plaintiffs $1,500 for the deprivation of light and air caused by a concrete slab bridge erected over a public street thirty-three feet to the- east and creating no servi