Appeal No. 315 | Pa. | Jul 18, 1895
Opinion by
The only assignment of error in this case is that the learned court below refused to. give a binding instruction to the jury to find for the defendant. The proposition upon which the defendant’s point was based, was, that as the plaintiffs leased the premises in question after the city ordinance of March 31, 1891, directing the widening of Chestnut street between Seventh and Eighth streets was passed, they could not recover
The authorities relied upon by the appellant are those which decide that there can be no recovery of damages for buildings which are erected upon ground, over which public streets are laid out but not jmt opened. We do not think that doctrine is applicable to this class of cases, because this is not a claim to recover damages for an erection, but for taking down a part of a building which had been erected long before the ordinance was passed. The owner of the building certainly could recover damages for such an injury, and we can see no good reason why his tenant, who was in the ordinary and lawful possession of the premises under a lease, should not be entitled to the same redress. The principle of the cases which exclude a recovery where a new erection is made after the street is laid out, is, that the owner may not thereafter do any act which will increase the cost of opening, but that principle is not applicable where there is nothing but a continued occupancy of a pre-existing erection. Surely the owner is not obliged to abstain from using by himself or by his tenant, such premises during the uncertain period which elapses, and which may long continue to elapse after the passage of the ordinance to widen and before the work of widening is commenced. It would work a great hardship to owners if they were prohibited from leasing such premises during such a period. In this case the rental was $5,000 per year and it was fifteen months after the passage of the ordinance before the work was commenced.
There can be no doubt that the plaintiff was actually damaged by the taking down of the front of the building, the charge of the learned court below was eminently fair and impartial, and the verdict which was for about half the plaintiffs’ claim seems to be reasonable. We think it was the duty of the court to submit the case to the jury and therefore no error was committed in refusing the defendant’s point.
Judgment affirmed.