23 A.2d 723 | Pa. | 1941
Lead Opinion
The City of Philadelphia is here appealing from an order of the Court of Common Pleas No. 4 of Philadelphia County, dismissing exceptions filed to a report of a Board of View compensating Pennsylvania Range Boiler Company, appellee, for damages alleged to have been occasioned to its real estate by the change of grade of Washington Avenue. *36
On February 14, 1914, an ordinance was approved to abolish certain railroad crossings and to provide other improvements in that portion of the City of Philadelphia lying south of Christian Street and between the Delaware and the Schuylkill Rivers. Thereafter, on petition of appellant, a Board of View was appointed to assess the damages and the benefits of this project. The proceedings before the Board were divided into sections and each section was taken up separately as the work thereon commenced. The Board thus was given jurisdiction over each section of the work independently of the other, and as the testimony relative to a particular section was completed, separate reports accordingly were filed. Pursuant to this method, a proceeding was instituted in 1920 to assess the damages and the benefits of the opening of Twenty-fifth Street from Washington Avenue to Point Breeze Avenue, whereon the work had been started. However, no work had been commenced as yet on Washington Avenue or Ellsworth Street, each of which met Twenty-fifth Street at almost a right angle and at a grade several feet above it. The Board accordingly heard testimony solely as to the Twenty-fifth Street opening offered by appellant and the various abutting property owners, including William Wharton Junior and Company, the then owner of the property covering the block bounded by Twenty-fifth Street, Washington Avenue, Twenty-fourth Street and Ellsworth Street. However, after such evidence was presented, but before making its award, the Board notified appellant and the Wharton Company, among others, that the opening and change of grade of the lateral streets should also be considered in that particular proceeding. Therefore, appellant and the Wharton Company produced additional testimony to cover also the proposed grading and improvement of Washington Avenue and Ellsworth Street, and an award was made based upon all evidence thus presented, which award was paid by appellant on or about June 1, 1921. There is nothing whatever in the Board's *37 report as filed by it in the court below to indicate that the Washington Avenue improvement was considered or that any portion of the award was based thereon. The only available record that such was the fact is contained in the notes of testimony retained by the Board.
Since the award and its payment, that portion of the Wharton Company property at the corner of Twenty-fourth Street and Washington Avenue, through mesne conveyances, passed to Laurence B. Levy, who was the owner thereof when the work of grading Washington Avenue actually was started on the ground on September 1, 1927. Sometime thereafter Levy died, and his executors, on November 18, 1937, conveyed this corner piece of land to appellee, together with all right, title and interest in any claim for damages against appellant arising out of the change of grade of Washington Avenue, which deed was duly recorded. Appellee thereupon filed a claim for such damages before the Board, which made the award here in controversy. The amount of the award, however, is in no way involved in this present appeal, for that matter has as yet to be tried before a court and jury.
The problem thus presented to us for solution is: Whether a subsequent innocent purchaser of real estate is chargeable with notice of the award of damages and the payment thereof to his predecessor in title to cover future losses which may result from a change of grade of a street, when the only record is contained in the notes of testimony in a proceeding before a Board of View concerning another street.
Appellant does not allege that appellee had any actual notice at the time he purchased the corner property in question that an award had been previously made to the Wharton Company. Its contention is, however, that a diligent search of the records would have revealed that fact. With such argument we cannot concur. There is no record pointed out from which he could possibly have obtained such notice, nor could there be under the *38
circumstances as here presented. Concerning what constitutes notice, it was said, in Tabor Street (No. 1),
Even though appellee had no actual notice of the award to the Wharton Company and could not have acquired knowledge thereof from a diligent search of the *39
records, nevertheless, if a release of future damages does not come within the recording acts, the award to appellee must fall. It is only in case such an instrument is required to be recorded by the statutes that the failure so to do can in any way injuriously affect appellant, who is here asserting that it is relieved by the award to the Wharton Company. SeeMaclay's Lessee v. Work, 5 Binn. 153. Damages for the grading of Washington Avenue could not be legally considered by the Board in conjunction with the opening of Twenty-fifth Street, unless the parties so agreed. This, of course, the Wharton Company and appellant did, at least impliedly, when they presented additional testimony before the Board regarding the grading of Washington Avenue, and appellant paid and the Wharton Company accepted the award made by the Board based thereon. Thus, their actions clearly amounted to an attempt to release the property from future damages which might arise when Washington Avenue was eventually improved. The right to recover damages for such grading did not accrue until the actual grading started on the ground (Plan 166,
We are satisfied that Shields v. Pittsburgh,\
Order affirmed, at appellant's costs.
Addendum
I cannot agree to all that is said in the opinion, but I concur in the order affirming the judgment.
