165 Pa. 367 | Pa. | 1895
HUCKESTEIN v. ALLEGHENY CITY, APPELLANT.
Opinion by
This case grew out of a proceeding to assess the damages to result from a proposed change of grade of Sandusky street in the city of Allegheny.
Viewers had been appointed who went upon the ground and after examination made report that little damages would be done by the proposed change. The plaintiff appealed, and the appeal was certified by the court of quarter sessions into the common pleas for trial before a jury. It was tried in October, 1892, and resulted in a very large verdict in favor of the plaintiff. The city then appealed to this court and the record is now before us. It presents a series of blunders on the part of the city that extends from one end of the proceeding to the other, and from the consequences of which it is not easy to extricate her upon the assignments of error appearing on the record. The proceedings seem to be taken under a • statute that is in manjr respects like that considered in Wyoming Street, 137 Pa. 494. It interferes with the jurisdiction of the quarter sessions and confers on the city powei's-that belong to that court. Under its provisions, when the city enters upon
The city councils passed an ordinance in 1890 for the purpose of “ changing the grade on Sandusky street from Henderson street to Bell avenue.” This was done upon the assumption that Sandusky street, at the point mentioned, was a city street and had an established grade under proceedings begun some twenty’years before. The viewers were appointed by the city councils in the same ordinance, and their business was to estimate the damages to accrue from the contemplated change of grade. They were not to lay out or open a street, but to examine an existing street in order to change an existing grade. The ordinance was itself a blunder. If the street had been adopted and opened as the ordinance assumed, its grade was that of the surface as it existed when the owner laid it out on his plan of lots, long before the plaintiff acquired his title or begun his excavations; and as what was proposed was to restore substantially the grade of the surface across the plaintiff’s excavation, the ordinance was a work of supererogation. The excavation was in that case a trespass, a nuisance for which the plaintiff was liable. But the plaintiff insisted on the trial that the street had never been accepted or opened by the city, and the defendant was unable to show that it had been. In this view of the case the ordinance was no less a blunder, for-if there was no street on the ground there was no grade to change. The case went to the jury on the question
The jury have found that the assumed facts did not exist. There was no street on the ground, no grade to change. The purpose of the ordinance becomes impossible of performance and it falls. The city is on the horns of a dilemma. Let it take whichever- it will its ordinance was a blunder. If the
The second assignment may afford room to correct the one mistake made at the trial. The case had to go to the jury upon the question raised by the plaintiff over the existence of a public street on the ground, but the jury should have been instructed, in case they found Avith the plaintiff upon this question, that damages could not be recovered for an attempt to change that which had no existence. An effort to do an impossible thing could inflict no greater injury on the plaintiff than the costs and expenses to which the effort might subject him.
The judgment appealed from is reversed and the record remitted that the court may fix an allowance for counsel fees for the plaintiff and tax the costs. If these are paid no venire facias de novo will be awarded. If not paid, application can be made to us for such Avrit.
ALLEGHENY CITY’S APPEAL.
Opinion by
Jan. 7,1895:
The case of Huckestein v. The City of Allegheny, in which, an opinion has just been filed, practical^ disposes of this case. The judgment rendered in the court of common pleas in favor, of Huckestein has been reversed for reasons that are fatal to the plaintiff’s claim, and there is noAv no good reason why the city should not be allowed to correct its mistakes and be relieved from their consequences so far as Sandusky street is concerned, upon the payment of the costs and expenses they have
The order appealed from is now reversed and the record remitted that the court below may make a proper allowance to Huckestein for costs and expenses, and upon payment of the same by the city, permit the proceedings for the assessment of damages to be withdrawn...