179 A. 741 | Pa. | 1935
The Act of June 17, 1913, P. L. 520, empowered the City of Philadelphia, inter alia, to construct transit facilities, a term defined in the act "to include railways . . . for the transportation of persons . . . under . . . streets . . . also . . . tunnels, [or] subways. . . ." The city by its contractors constructed the tunnels or subways involved in these appeals. Blasting during the construction is alleged to have caused damage to abutting property. The work in front of petitioners' properties was confined within the lines and below the surface of the city streets in public use for many years; no entry was made on petitioners' lands.
These appeals bring up three separate proceedings instituted by property owners at different points on the lines of the subways. A petition for a board of view was filed in Common Pleas No. 1 by the owner of certain property on South 8th Street; in Common Pleas No. 5, by the owner of property at the northeast corner of Broad and Master Streets; and in Common Pleas No. 2, by the owner of property on North 8th Street. Common Pleas Nos. 1 and 5 appointed boards of view; Common Pleas No. 2 dismissed the petition on the ground that there was no statute providing for viewers in such case. The two boards filed reports making awards of compensation. The city filed exceptions; when they were dismissed, appeals were taken to the Superior Court. From the refusal of Common Pleas No. 2 to appoint viewers, the petitioner appealed to the Superior Court. The three appeals were disposed of by affirming the action of courts Nos. 1 and 5 and reversing that of Common Pleas No. 2. Leave was then granted to the city to appeal to this court.
The abutting house owners contend that they sustained injury within article XVI, section 8, of the Constitution and that the appointment of viewers to assess damages was authorized by the Act of May 16, 1891, P. L. 75, section 1, amended June 12, 1893, P. L. 459; they also rely on three other statutes to be referred to. *164
The appellant city denies the contentions of the appellees and asserts that the boards of view were without jurisdiction of the claims.
Article XVI, section 8, provides: "Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction. The General Assembly is hereby prohibited from depriving any person of an appeal from any preliminary assessment of damages against any such corporations or individuals made by viewers or otherwise; and the amount of such damages in all cases of appeal shall on the demand of either party be determined by a jury according to the course of the common law." The first part of the section created a new right, and required no legislation to make the right effective; it was enforceable by common law action on the case (Plan 166,
One petition averred that in constructing the subway it became necessary "to remove rock and other materials and obstacles in the path of the said tunnel by blasting the same with giant powder, dynamite and/or other powerful explosives under the supervision and with the knowledge and approval of the department of city transit of the City of Philadelphia"; that the "blasting was the necessary and approved means and method of accomplishing this part of the work"; that "As the immediate, unavoidable and necessary result of the . . . blasting . . . in front of, at, or near the said property of your petitioner, the land and building of which said property *165 consisted was made to sink, settle and subside, the building particularly being undermined, loosened, cracked, dislocated and injured." That the injury was the "direct, immediate, inevitable and necessary result of the work of excavating, tunnelling and blasting done and executed by the City of Philadelphia through the agency above named [the contractor]."1
The basic question is whether there is a remedy by the board of view procedure. As such remedy is not in the course of the common law, we look to the statutes to see whether it has been provided. The property owners say that it is given by the Act of May 16, 1891, P. L. 75, section 1, amended June 12, 1893, P. L. 459. They also refer to the Act of May 28, 1913, P. L. 368, containing substantially the same words; and to the Act of June 23, 1911, P. L. 1123 (amended 1929, P. L. 866), providing for the general appointment of viewers for specified terms of office, from which boards of view shall be appointed from time to time as may be authorized by law; and to the Transit Act of 1913, supra. Both Common Pleas No. 1 and No. 5 thought that the cases were within the Act of 1891, and that, in addition, the scope of the Transit Act of 1913 implied a remedy by viewers. We are constrained to differ from these interpretations of the statutes.
On May 16, 1891, the date of the approval of the act chiefly relied on, four acts were approved, three relating to the remedy by viewers and one concerning municipal liens, P. L. 65, 69, 71 and 75. In Howell v. Morrisville Boro.,
Section 1 of the Act of 1891, P. L. 75, as amended 1893, P. L. 459, provides: "That all municipal corporations of this Commonwealth shall have power, whenever it shall be deemed necessary in the laying out, opening, widening, extending, grading or changing grade or lines of streets, lanes or alleys, the construction of bridges and the piers and abutments therefor, the construction of slopes, embankments and sewers, the changing of water *167 courses or vacation of streets or alleys, to take, use, occupy or injure private lands, property or material, and in case the compensation for the damages or the benefits accruing therefrom have not been agreed upon, any court of common pleas of the proper county, or any law judge thereof in vacation, on application thereto by petition by said municipal corporation or any person interested, shall appoint three discreet and disinterested freeholders as viewers. . . ."
The subway is a tube or tunnel constructed under the surface of the street without changing the grade of the street. The action of the city did not involve laying out or opening or widening of any street. The termini of the streets were not extended.2 The grade of the streets was not changed; there was no alteration in the lines of the streets. No bridges, slopes, embankments or sewers were constructed. There was no change of watercourse or vacation of any street. This court has not held that the construction by a city of a tunnel or underground subway in the bed of an existing city street, is within the words of the statute.
It is suggested, in the opinion of the Superior Court, that the point was ruled in Stork v. Phila., supra, but we *168 do not so understand it; the question was not involved in that case. The Stork Case grew out of work done pursuant to a city ordinance passed March 17, 1894; Ordinances, 1894, page 52. Some idea of its scope can be obtained from its title: "To authorize the work necessary to abolish all grade crossings on Pennsylvania Avenue and Noble Street, between the east side of Thirteenth Street and Poplar Street, in the Fourteenth and Fifteenth Wards, by depressing the tracks and yards of the Philadelphia and Reading Railroad Company on Pennsylvania Avenue, between Broad Street and Thirtieth Street; providing for alterations in the lines and grades of its tracks and yards between the north side of Noble Street and Callowhill Street, and between Broad Street and Eleventh Street; and alterations in the lines and grades of the tracks of the Philadelphia and Reading Terminal Railroad Company east of Broad Street, between Noble Street and Carlton Street; to authorize the revision of lines and grades of streets, and otherwise provide for said constructions and all matters incident thereto; and providing for the carrying into effect such authority and certain conditions." It provided for changes in street lines, widening streets and changes of street grades in a large area of the city, and was therefore directly within the terms of the Act of 1891, P. L. 75, providing a remedy by viewers. In the section of that improvement nearest Fairmount Park, a subway or tunnel was constructed for the relocation of railway tracks theretofore laid on the surface. Farther east, the tracks were in an open cut. At the intersection of 18th Street and Pennsylvania Avenue (Stork's property fronted on 18th Street near the avenue), there was a change of grade of Pennsylvania Avenue resulting from its depression for the purpose of separating the existing grade crossing of 18th Street and the railway on the avenue. Property owners affected by this change in the surface grade of the avenue were of course directly within the change of grade provisions of the statute. But the decision is not authority *169 for, and did not discuss, the proposition that the statute provided a remedy by viewers for damages resulting from the construction of a subway or tunnel under the surface of a street where there was no change of grade in front of the abutter's property.
As the common law remedy for the injury made compensable by article XVI, section 8, was by action on the case, we are prohibited by a settled principle of the interpretation of statutes from extending the meaning of the words used by the legislature beyond their generally understood meaning, and may not resort to the implication suggested by appellees and read into the act as unexpressed legislative intention to provide a remedy by viewers for injury such as petitioners complain of. We have already referred to the obvious legislative purpose of passing the four acts approved May 16, 1891, as stated in Howell v. Morrisville Boro., supra.
In Keim v. City of Reading,
What has been said on this subject is sufficient answer to the inference proposed to be made from the Act of May 28, 1913, P. L. 368; "Section 1. Be it enacted, c., That the right to damages against cities, counties, boroughs, or townships, within this Commonwealth, is hereby given to all owners or tenants of lands, property, or material abutting on, or through which pass, roads, streets, lanes, or alleys, injured by the laying out, opening, widening, vacating, extending or grading of said roads, streets, lanes or alleys, or the changing of grades or lines thereof, by said cities, counties, boroughs or townships"; the word "extending" (also used in the Act of 1891) as applied to a street, and in the context, does not include the construction of a tunnel under the street but refers to extending the length of the street.
In the courts below some reliance was placed on a suggested implication from the provisions of the Transit Act of 1913 (P. L. 520), but we must also reject this contention. There is no room for implication that a remedy by viewers was intended for work done within the street lines. The portion of the title (see Halderman's App.,
These provisions conferred no power that the city did not already possess to do anything necessary within the lines of the city streets; the obvious purpose was to empower the city to obtain such land outside the street lines or outside the city limits as might be required for the purposes of the construction and operation of the railway system: Cf. Phila. Elec. Co. v. Phila.,
Appellees also rely on the Act of June 23, 1911, P. L. 1123, establishing in each county a board of viewers from which viewers are selected for particular cases as required from time to time. The property owners in their brief select the word "altering" in section 5 (amended April 30, 1929, P. L. 866) of this act, and say it includes the construction of a tunnel or subway in a street. "The general purpose of the statute," we said in Reber's Petition,
The orders appealed from are reversed.