151 Pa. 334 | Pa. | 1892
Opinion by
The plaintiff holds the title to two pieces of real estate in the borough of Pottsville. One of these known as the Bannan homestead has a front on Coal street over part of which the defendant’s road has been built. The other contains several acres, has been laid out into building lots fronting upon Jackson street and two or three other streets, and is separated from the homestead lot by an intervening tract known as the Whiting tract. It does not front upon Coal street, but at its nearest approach thereto has a tier of lots from one to two hundred feet in length between its lines and the street.
In this action the plaintiff seeks to recover damages by reason of the location of the defendant’s railroad over part of Coal street. A recovery was had for the damages sustained by the Bannan homestead, but the learned judge of the court below-instructed the jury that there could be no recovery of damages for the alleged consequential injury to the larger tract because it did not abut on Coal street along which the railroad was built. This instruction is the error assigned.
The general question thus raised is whether a lot owner whose lot does not approach nearer to the line of a railroad than from one to two hundred feet, but who is within reach of the noise and dust produced by the ordinary operations of the road, may recover damages for the consequential injury sustained by reason of such noise and dust ? If so, it is not easy to see why all citizens of Pottsville living near enough to the line of defendant’s road to notice the noise and smoke and dust of its trains, might not sustain an action. But the question is not now an open one in this state. It was fully considered and distinctly ruled in Lippincott v. The Pa. Railroad Company, 116 Pa. 472, and in Marchant v. The Railroad Company, 119 Pa. 541.
The appellant seems to have been of this opinion, for it sought
It was further alleged that as this alley connected with the private way from the Bannan homestead to Coal street, so that the owner had access to Coal street by means of the alley to the private way and thence over that way to the street, the larger tract became thereby an abutting tract upon Coal street with the same right to recover as though its lines had extended to and along that street.
The proposition that two distinct tracts of land connected only by means of a way, whether private or public, cannot be treated as one for the assessments of damages is well settled. If it was otherwise how long may the way be? Over how many intervening lots or blocks or tracts of land will an “ alley twelve feet wide ” draw the tract of land at its farther end ? If the owner óf the homestead lot had other tracts connected by grants of a right of way with this alley, would the alley unite all these outlying properties with the homestead so that they could be taken into account for an entry on the homestead lot alone ?
But the plaintiff insists that, however this may be, the alley certainly makes the larger tract an abutting property on Coal street. If it cannot be treated as part of the homestead by means of the private way, then it is brought into a position to claim damages independently as abutting on the street over which defendant’s road passes. But it must be remembered that the grant under which this right is asserted is a grant of a right of way only. The way is of no higher order than a public way. It affords one means of access to Coal street. The right of the grantee is a right to reach Coal street by this route so far as the rights of the grantor over the intervening land are concerned.
Now an abutting owner owns, subject to the public right of passage, to the middle of the street on which his lot fronts, and a railroad laid upon the street may be said to take from him and to interfere with access to his property fronting the street. But persons who are not abutting owners and whose only right in the street is to come upon and pass over it are
As a general proposition the property must be that which is invaded in the exercise of the right of eminent domain, or that which abuts upon a highway that is invaded. Of the latter class was Walsh v. The Pa. Schuylkill Valley Railroad Company, 124 Pa. 544. The plaintiff’s property was upon a street corner in that case and the railroad was built along one street close to the curbstone, and across the other, thus obstructing access to the property. So in Duncan v. The Pa. Railroad, 111 Pa. 352, the structure complained of was in the street on which plaintiffs property had a front and extended to and within the line of the curbstone, preventing access to the plaintiff’s property.
Our attention is called to Coons v. The Monongahela Navigation Company, 6 W. & S. 101, as authority for the proposition that it is not necessary the property alleged to be injured should adjoin or have any physical relation to the defendant’s works; but no such rule is held in that case. The facts were
The judgment is affirmed.