166 A. 895 | Pa. | 1933
Lead Opinion
Mr. Justice MAXEY filed a dissenting opinion.
Argued January 16, 1933. Appellant's decedent, as tenant, leased property on North Front Street, Philadelphia, for one year with the privilege of renewing from year to year at his option. In building the Delaware River Bridge the Commission directed a change of grade in that street. The Commission's authority was conferred by the Act of July 9, 1919, P. L. 814. Plaintiff, who was engaged in a business requiring the use of trucks, averred in the court below that the new grade of the street, six feet below its former grade, prevented access to his premises; and as Front Street was the only means of access, the change destroyed the use of the premises. He was obliged to vacate his leasehold and remove his heavy machinery therefrom. The action to recover damages resulted in a verdict for defendant which the court below refused to disturb. This appeal followed.
While trial errors are alleged, it is not necessary to consider them, for section 3 of article III of the Constitution bars the way to plaintiff's recovery. This contention was not specifically raised at the trial and as judgment was for the Commonwealth, here as appellee, it is now raised by the Attorney General in his brief. The constitutional provision reads: "No bill, except general appropriation bills, shall be passed containing more than one subject, which shall beclearly expressed in its title." The part of the title to the Delaware River Bridge Act, which is pertinent to the question now under discussion, *438 reads as follows: ". . . . . . providing for the acquiring, [taking,] and condemnation of the real estate for the site and approaches thereof [i e., of the bridge,] and making an appropriation for the purposes of this act." As the body of the act is sufficiently comprehensive to cover claims for the consequential damages which plaintiff sustained, the question is, does the title give sufficient notice of the new liability that is to be imposed on the Commonwealth.
Section 10 of article I of the Constitution reads: ". . . . . . nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured." This provision applies only to the taking of land or interests therein.
Damage that is merely consequential upon a change in grade of a street does not constitute a taking of property within the constitutional clause cited. Damages for such taking are a matter of legislative grace and not of right: Hoffer v. Reading Co.,
In the Soldiers and Sailors Memorial Bridge Case,
The titles in neither of these bridge acts give any notice that liability for consequential damages or such damages as were sustained in these respective cases, was to be imposed on the Commonwealth.
We said in the Soldiers and Sailors Memorial Bridge case, supra, that "The title provides for taking property by eminent domain. This contemplates an actual or direct taking of property and for it damages are provided. Consequential damages arise when property is not actually taken or entered but an injury to it occurs as the natural result of an act lawfully done by another. . . . . . An abutting owner could not recover consequential damages for a change of grade before the Constitution of 1874: Struthers v. Dunkirk, etc., Ry. Co.,
A statute can not authorize the taking of private property for public use without just compensation; otherwise the act would be unconstitutional: Article I, section 10 of the Constitution, supra. The Constitution does not bar the enactment of a statute authorizing the taking of such property with compensation, and if, in the taking, consequential damages result, the statute may provide for just compensation to be made for such damages. If a statute does provide for compensation for *440 consequential damages, the legislative intent so to do must be clearly set forth in the title of the act.
The reason for the rule is obvious. In addition to many others, the Commonwealth owns the highways of the State and constructs yearly thousands of miles of road. If it were to be liable for consequential damages, at times where acts so provide, in the thousands of instances where the grade of the road is changed through farm and other lands, the burden imposed on the Commonwealth would be enormous.
Reference is made to Phila. v. Com.,
Judgment affirmed.
Dissenting Opinion
There is no doubt that the property of appellant's decedent, Raiguel, was substantially injured by the act complained of. His business of collecting, baling and shipping waste paper required convenient access to and from his leasehold property by trucks. The lowering by six feet of the grade of Front Street on which his property faced took away his sole access to his premises, thereby destroying the value of his leasehold. The work of changing the grade in front of his property began in February, 1926. In March, 1926, Raiguel was obliged by this change of grade to vacate his property and to remove his heavy machinery therefrom. His landlord *441
compelled him to pay the rental for the unexpired balance of the term, i. e., until February 20, 1927. The landlord's proceedings against Raiguel ended in a judgment against him, duly affirmed by the Superior Court. (See Girard Trust Co. et al. v. Raiguel,
After Raiguel instituted the present action, he died and his administrator was substituted as plaintiff. The trial resulted in a verdict for the defendant. Plaintiff moved for a new trial and for judgment n. o. v. The motions were denied and plaintiff appealed.
The majority hold that the Constitution bars plaintiff from recovery because the Delaware River Bridge Act of July 9, 1919, P. L. 814, providing, inter alia, for the acquiring, taking and condemnation of real estate for the site and approaches of the Delaware River Bridge, did not clearly express in its title a purpose to impose on the Commonwealth liability for consequential damages caused by the erection of this bridge and its approaches.
With this I cannot agree. That the legislature intended the Commonwealth to make compensation for damages such as were sustained by plaintiff is evident from section 2 of the act, where appears this sentence: "The term 'cost of construction,' as used in this act, shall include the cost of constructing the superstructure and substructure of the bridge and the approaches thereto, and the cost of acquisition of the ground for the site of said bridge and the approaches thereto,including any franchises, easement, rights, or damagesincident thereto or consequent upon the taking thereof." (Italics supplied.) That plaintiff's easement was "acquired" by the Commonwealth in constructing the approaches to the bridge is indisputable. "It is well settled that the right to the use and possession of a lot abutting on a public street is property and the right of access is equally property": Lewis on Eminent Domain, volume 1, page 56. *442
No question as to plaintiff's recovery being barred by the Constitution was raised in the court below. The City Solicitor in asking for binding instructions said: "The case rests on but one question, and that is a question of law as to the voluntary removal. . . . . . If there had been a legal proving of a damage, it is not a damage that is assessable, by reason of the fact that the evidence shows he voluntarily abandoned the property." The court submitted that question with what I view as erroneous instructions.
There is nothing in the statement of questions involved, in either appellant's or appellee's paper book, even remotely referring to an alleged defect in the Bridge Act's title on which the court's opinion in this case is now grounded. However, even if we assume that the question of the amplitude of the title of the Delaware River Bridge Act was squarely raised, I can find no warrant for holding the title inadequate. We have had other acts in this Commonwealth providing for the imposition on the body politic or on a subdivision thereof of liability for damages for change of a highway grade, and the titles to these acts have been no more ample than is the title now challenged.
In the Borough Act of May 14, 1915, P. L. 312, it is provided in chapter 6, article II, section 1, that "a borough may enter upon, appropriate, injure, or destroy private lands, property or material" "in the laying out, opening, widening,. . . . . grading, or changing the grades or lines of streets, etc." Section 2 provides that "in case the compensation for damages or benefits accruing therefrom have not been agreed upon, any court of common pleas,. . . . . . shall appoint three viewers" (Section 5) to "determine the damages for property taken, injured, or destroyed." This is the act's entire title: "An act providing a system of government for boroughs, and revising, amending, and consolidating the law relating to boroughs." *443
The Act of June 22, 1917, P. L. 627, likewise provides: "That all damages which shall be. . . . . . sustained by any owner or tenant of lands. . . . . . in any borough of this Commonwealth,. . . . . through which pass, roads, streets, lanes or alleys injured by the laying out, opening, widenening,. . . . . or grading of such roads,. . . . . or the changing of the grades or lines thereof, whereby private lands, property or materials may or shall be injured, taken, or destroyed by any borough,. . . . . shall be ascertained and assessed as provided in chapter six, article II of the Act" of May 14, 1915, known as the General Borough Act. The title of the Act of June 22, 1917, reads as follows: "An act providing for the ascertainment and assessment of damages and benefits in proceedings to lay out, open, widen, vacate, extend, grade, or changing the grade or lines, of streets, lanes, and alleys in boroughs; providing that this act shall apply to all proceedings when the damages shall not have been actually and finally ascertained; and repealing all acts, general, local, or special, conflicting therewith."
Neither the Act of 1915 nor the Act of 1917 gave any noticein its title that liability for consequential damages or such damages as were sustained was to be imposed upon a borough. Yet this court said in Blainesburg-West Brownsville Road,
The Township Code of 1917, P. L. 896, confers on property owners in townships of the first class the right to recover damages for injuries to abutting property, caused by a change in the grade of roads, yet the title to the act says nothing about consequential injuries. This act was upheld. See Hanover Twp.,
The title of the Delaware River Bridge Act providing, inter alia, for "the acquiring, taking, and condemnation of the real estate for the site and approaches" of "a *444
bridge over the Delaware River, connecting the City of Philadelphia and the City of Camden. . . . . . and making an appropriation for the purpose of this act" was and is, in my judgment, a sufficient notice of the contents of the act to acquaint persons interested in the subject-matter of the act with the fact that the Commonwealth was going to "acquire" and "condemn" whatever real estate (and that, of course includes easements) was necessary for the site and approaches of the bridge and was to pay for the same. If so, the title meets all of the requirements as to sufficiency of an act's title as laid down by this court in a long line of cases. In Snyder County, to use, v. Wagenseller,
In Carr. v. Ætna Accident Liability Co.,
The title of the act read as follows: "An act to establish an Insurance Department; authorizing the appointment of an Insurance Commissioner, and prescribing his powers and duties; also providing for the licensing, examination, and dissolution of insurance and surety companies and associations, and for the licensing and regulation of insurance agents and insurance brokers; also providing for the collection of fees, and prescribing penalties for the violation of any of the provisions of this act, and repealing all existing acts."
In that case the Superior Court held that the title of the act was adequate saying in an opinion by Judge KEPHART: "Mr. Justice STEWART, in Leinbach's Est.,
In the case now before us there is no "substantive matter entirely disconnected" with the bridge legislation which is "included in the folds" of the Delaware River Bridge Act. The title of the act gives ample notice of *446 the fact that the State in order to build the Delaware River Bridge and its approaches was empowered to acquire easements and other property rights, and that these property rights were to be paid for out of proceeds appropriated for that purpose.
See also Sugar Notch Boro.,
The instant case is distinguishable from the Soldiers and Sailors Memorial Bridge Case,
This court interpreted this Delaware River Bridge Act of July 9, 1919, in Phila. v. Com.,
If the Delaware River Bridge Act of 1919 was broad enough in its title and provisions to justify a verdict of $402,000 against the Commonwealth for the taking of property whose foundation was "the incorporeal right of access to a navigable river in front of the abutting owner's lot — as this court in the above case held it was — I cannot see why it is not broad enough to justify Raiguel's claim for compensation for taking his right of access to a public street. In each case there was the taking of an easement, and in the case just cited the city was compelled to pay for the taking of both the easement and the structures.
For the injuries done to Raiguel's property rights he was entitled to recover whether the injuries be characterized as "consequential" or "direct." Even conceding that they are the former, the Bridge Act provides for compensation for them and the title to the act is ample when tested by the decisions of this court. But I do not concede that the injuries were merely "consequential." There was in this case such a direct taking of Raiguel's property as to bring it within the prohibition of article I, section 10 of the Constitution, which declares: "Nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured." As was recognized by this *449 court in the case last above cited a "taking" may consist of the invasion of a hereditament that is incorporeal as well as of one that is corporeal. An easement is just as much the subject of a taking as is a house and lot.
From the cases in this and other jurisdictions dealing with direct or consequential damages one can deduce the principle that consequential damages are unsubstantial damages, i. e., matters of mere annoyance. In the case of The Philadelphia and Trenton R. R. Co., 6 Wharton 25, this court in an opinion by Chief Justice GIBSON said: "The benefit of the constitutional prohibition [against taking private property for public use] extends not to matters of mere annoyance."
Blackstone in volume 3, section 218, of his Commentaries, says: "If I have a way, annexed to my estate, across another's land, and he obstructs me in the use of it, either by totally stopping it, or putting logs across it, or ploughing over it, it is a nuisance; for in the first case I cannot enjoy my right at all, and in the latter I cannot enjoy it so commodiously as I ought." Blackstone in the same section contrasts this kind of an actionable nuisance with one that is not actionable. As an illustration of the latter he says: "But depriving one of a mere matter of pleasure, as of a fine prospect by building a wall, or the like: this, as it abridges nothing really convenient or necessary, is no injury to the sufferer, and is therefore not an actionable nuisance."
In Erie City's App., Mill Creek Case,
Raiguel sustained "proximate, immediate and substantial damages" to his leasehold by the lowering of the grade in front of his property to a depth of six feet, thus destroying for all practical purposes all access to his property and making the premises worthless to him. If, in the construction of the approaches to the Delaware River Bridge, the Commonwealth had built a moat or a high wall around some person's property thereby cutting off all access to it, though without taking any part of the property itself, who could logically question the fact that there was in that case such a taking of private property as the Constitution forbids unless just compensation be first made or secured? "To deprive one of the use of his land is depriving him of his land; for, as Lord COKE long ago said, 'What is the land but the uses thereof?' ": SUTHERLAND, J., in People v. Kerr, 37 Barb. 357, 399; Co. Litt. 4 b.
It is true that there are cases in which this court has held that the mere change of grade in front of an abutting property was only an annoyance that did not amount to legal injury and therefore was not compensable by a corporation exercising the power of eminent domain unless some statute specifically provides for such compensation, but in none of these cases was access to a man's property taken away by the change of grade to the extent that Raiguel's access to his property was taken away from him. That a man's right of access to his property is a valuable right which cannot be taken away without just compensation has been repeatedly recognized. *451
In Chambersburg Shoe Mfg. Co. v. Cumberland Valley R. R. Co.,
In Mellor, Exr., et al. v. City of Phila.,
In recent cases this court has construed the changes of grade incident to the construction of a grade crossing and a bridge as not being a change of grade within the meaning of those decisions which did not allow consequential damages for change of grade, but have construed such changes of grade to be incident to the construction of the bridge or grade crossing. In Knoll v. Harborcreek Twp.,
In Westmoreland Chemical Color Co. v. Pub. Ser. Com.,
The prevailing modern American view on this question of the right of an individual to be compensated for a substantial abridgement of his private property by a public or private corporation exercising the right of eminent domain, is well expressed by the United States Supreme Court in an opinion by Mr. Justice MILLER, in the case of Pumpelly v. Green Bay Co.,
In the leading case of Eaton v. Boston, Concord Montreal R. R.,
"The city might so build a bridge or open a street or excavate a canal along or upon a lot, only appropriating a small portion of it, or perhaps none of the land itself, and yet entirely destroy the value of the property for all purposes": Alexander v. Milwaukee, 16 Wisconsin 247, 253. *454
Whether the injuries to Raiguel's property are characterized as "consequential" or held to constitute a "direct taking" of a property right is immaterial. He is in either event entitled to recover damages, for what was taken from him has all the legal qualities of property. For consequential damages the Bridge Act fully provides and the title of the act is ample; for damages for a direct taking for public use of any property — and an easement is property — the Constitution guarantees compensation.
I would reverse this case with a venire for I believe the trial judge erred in his instructions to the jury. In substance he charged that Raiguel "abandoned any claim" for damages by vacating the premises. Nothing in the evidence supports any charge of abandonment. Raiguel was obliged to vacate the premises for he had been deprived of the use of them by having access to them taken away by the deep excavation in front. Furthermore, the court erred in instructing the jury that plaintiff's damages could not be ascertained until after the completion of the work in front of his premises. This instruction was contrary to the decisions of this court. See O'Brien v. Penna., etc., R. R. Co.,
My conclusions are: plaintiff sustained legal injuries that were compensable under the law; his case was submitted to the jury with erroneous instructions; there should be a new trial. *455