182 Pa. 397 | Pa. | 1897
Opinion by
These appeals were taken from judgments of the Superior Court without special allowance, on the filing of an affidavit that the cases involved the construction or application of the constitution of this state. It does not appehr from the record that any constitutional question is raised, and an appellant cannot be permitted to decide for himself whether he is entitled to an appeal without allowance. Unless it clearly appears from the record that the cases come within one of the exceptions named in the seventh section of the act creating the Superior Court there must be an allowance of the appeal, and the petition therefor should set forth clearly and specifically what constitutional question is involved and in what manner it is raised. As however the question of practice is new and has not been provided for by rule, and as the cases are of public importance and the judgments were rendered by a divided court, we overrule the motion to quash, and will consider the appeals as if before us by allowance of this court.
The proceedings in the quarter sessions were under the sixth section of the Act of April 21, 1858, P. L. 386, which places the owner of land in Philadelphia which has been injured by the vacation of a street upon the same footing to claim damages as the owner of land which has been injured by the opening or widening of a street: Hare v. Rice, 142 Pa. 608. This act was said by Mitchell, J., in the opinion In re Vacation of Howard Street, 142 Pa. 601, to extend the system long established in Philadelphia for the assessment of benefits for local improvements and the application of the money so raised to compensate others whose property has been taken, to consequential injuries caused by the vacation of streets, and to anticipate the provision of the new constitution which secures compensation for consequential damages where properly has been injured. Before the adoption of the new constitution the commonwealth was
For the loss or inconvenience caused by the vacation of a street, which those who own properties abutting thereon share in common with the community at large there can be no recovery. Where their loss does not differ in kind from that sustained by all others who have occasion to use the street for the purpose of travel, it is damnum absque injuria. But the owners of properties which have depreciated in value by reason of the closing of ■the street have sustained an injury in their property rights which is peculiar to themselves and which is different in kind from the injury sustained by those who use the street for travel only. The injury is not of the same kind, differing in degree only; it is an additional injury, caused by the impairment of an entirely distinct right, the special right of ingress and egress. The interest of the public in a highway consists wholly in the right of passage with the incidental right to do all acts necessary to keep it in repair; the owner of land fronting on a highway has an additional interest which must be regarded as property and
Where the part of a street in front of a property is vacated the owner’s right to compensation is conceded, but the right is denied unless there is an actual vacation and closing of the part of the street on which the property abuts. It is evident, however, that without the impairment of the owner’s outlet in one direction his property may be rendered comparatively worthless by a change in the physical condition of a street. To draw the line between owners who may and owners who may not recover, at
There seems to be but one answer to the questions propounded by the learned president judge of the Superior Court in his disse2iting opinion: “Are we prepared to declare in this-case that access to the claimant’s properties has not been impaired? Can the court say to these claimants ‘one opening to your properties is sufficient for your purposes, therefore no legal injury has been done to you by closing the other ? ’ Could we say that, if their properties fronted on two parallel streets, or were on the corner of two streets, one of which was vacated ? Is it not more in accord with sound principles to say that their right of access was not limited by the frontage of their properties, but extended to the two intersecting streets, and that it is for the jury to say whether, under all the circumstances, the claimants have suffered substantial damages in consequence of the closing of one mode of access ? ” We have the distinct finding by the jury, approved 'by the court of quarter sessions, that the appellants’ special right of access to their properties, has been impaired by the vacation of a part of Melon street, and that they have sustained a property loss thereby. The act of
All that can be said for or against the right claimed has been so well said in the opinions filed by the learned judges of the Superior Court, that further discussion of the subject is unnecessary. The precise question raised has not been decided in any of our cases, and because of the difference in legislative and constitutional provisions but little aid can be had in its consideration from the decisions in other states; but we believe that the conclusion which we have reached is in harmony with the trend of our decisions and with the weight of authority elsewhere. On principle the cases under consideration are almost parallel with Mellor v. Phila., 160 Pa. 614, which has been so fully discussed in the opinions filed. Indeed, it is difficult to see how that case can stand as an authority unless these appeals are sustained. In R. R. Co. v. Walsh, 124 Pa. 544, the property was at the corner of two streets, one of which was obstructed. In R. R. Co. v. Ziemer, 124 Pa. 560, damages were awarded for injuries to a property fronting on a cross street, and in Snyder v. Lancaster, 20 W. N. C. 184, damages were awarded to the owner of a property not fronting on the street opened.
The difficulty in defining the limits where the right to compensation shall end cannot be urged as a valid objection to the claims of the appellants. To entitle the owner of land to recover the loss must be one which he as owner has suffered by reason of the depreciation in value of his land. The basis of his claim for compensation is that his land has been lessened in value, not that he has suffered in common with others or to a greater extent than others because of something peculiar to himself. The difficulty in assessing damages is no greater than that which a jury meets in all such cases in ascertaining the extent to which properties in the vicinity have been benefited and in mating assessments therefor. To sustain the right of a claimant to compensation because of the vacation of a street it must appear that the loss results from the depreciation in value
As to the failure of the viewers to report specifically that the Philadelphia and Reading Terminal Company was the owner of the land benefited, it is sufficient to say that the report as a whole contains enough to supply the want of that formal averment. Reference is made in the report to the general scheme or plan of revision to enable that company to construct its elevated road; the ordinances providing for the same are recited,, and it is further stated that “ in the construction of the Philadelphia and Reading Terminal Railroad and its necessary works* that company has entered upon and occupied a portion of Ninth street so stricken from the city plan and also that portion of Melon street which has been stricken from the city plan as aforesaid.” In South Abington Road, 109 Pa. 123, it is said: “ The presumption is that the requirements of the statutes have been complied with by the viewers, and therefore it is not necessary specifically so to state in the report unless specifically required by the acts regulating the subject.” In that case it was. held that it was not necessary for the report to show that notice had been given to the land owners, or that the viewers had endeavored to obtain releases, or that they had taken into consideration the advantages accruing to the land owners from the opening of the street. It was also presumed that the route of the road was within the jurisdiction.
For these reasons, in connection with those stated in the dissenting opinion of the learned President Judge of the Superior Court, we think that the judgments of the court of quarter sessions should have been affirmed.
It was error on the part of the jury to include in their awards damages caused by the vacation of a part of Ninth street. As suggested in the opinion of the Superior Court, this error may now be corrected by the filing of releases. The judgments are reversed and the records are remitted to the court of quarter sessions of Philadelphia with direction to enter judgments for the appellants upon the filing of proper releases.