86 Pa. Super. 423 | Pa. Super. Ct. | 1925
Argued April 14, 1925. The Public Service Commission, December 23, 1919, in the exercise of the power to abolish grade crossings, ordered that a subway be constructed which would carry what was known as the Buffalo Road under certain railroad tracks and traction line and thus eliminate two grade crossings. In the carrying out of this plan the grade in front of plaintiff's property was changed in order to afford an approach and access to the proposed subway, and the County of Erie and the Township of Harborcreek were directed, among other things, to pay fifty per cent of all damages caused by the construction of such highway, as well as any damages legally sustained by any adjacent property. For the change of grade plaintiff claims damages. The Public Service Commission allowed him none, holding that the benefits equalled the damages. He then took his appeal as provided by the Public Service Act and a jury of Erie County gave him a verdict for $1,000. *425 Appellants claim that as no land was taken in the construction of said approach to the subway no damages can be recovered.
The Commonwealth may escape liability, but it may also assume it or impose it on the public service corporations or political subdivisions interested. There is nothing in the Constitution to prevent this. The Act of July 26, 1913, P.L. 1375, pp. 1409, 10, creating the Public Service Commission provides for the abolition of any grade crossing and "the compensation for damages, which the owners of adjacent property, taken, injured, or destroyed, may sustain in the construction, relocation, alteration, or abolition of any such crossing specified in this section (for which compensation the said owners are hereby invested with warrant or authority, upon appeal from the determination of the commission, to sue the Commonwealth), shall, after due notice and hearing, be ascertained and determined by the commission; and such compensation, as well as the expense of the said construction, relocation, alteration, or abolition of any such crossing, shall be borne and paid, as hereinafter provided, by the public service company or companies or municipal corporations concerned, or by the Commonwealth, either severally or in such proper proportions as the commission may, after due notice and hearing, in due course, determine, unless the said proportions are mutually agreed upon and paid by those interested as aforesaid." Here is a legislative act which fixes a method whereby the cost of eliminating grade crossings shall be apportioned, and the commission is designated to carry out the details of the scheme. The counties and townships are subdivisions of the State, are agencies of the government, and barring constitutional prohibitions, are entirely subject to legislative control. When such apportionment is made the extent of the liability is fixed. To escape this the defendants claimed that the road passing the plaintiff's property and in the grading of *426
which the damages were occasioned, was not a part of the improvement having for its purpose the abolishing of the grade crossings, but was a construction of a highway by the State and that for a change of grade for such highway there is no liability. If the damage was caused by the State in its sovereign capacity acting through the highway department, then plaintiff has no remedy for he cannot recover for property injured but not taken: article I, section 10, Constitution of Pa.: Highway Route No. 72,
The judgment of the lower court is affirmed.