Provost v. New Chester Water Co., Appeal, No. 292

Appeal, No. 292 | Pa. | Jul 11, 1894

Opinion by

Mr. Justice Mitchell,

This case is ruled by McDevitt v. People’s Nat. Gas Co., 160 Pa. 367" court="Pa." date_filed="1894-03-26" href="https://app.midpage.ai/document/mcdevitt-v-peoples-nat-gas-co-6242105?utm_source=webapp" opinion_id="6242105">160 Pa. 367, decided since this was argued. In that case the gas company had laid a pipe under the sidewalk in front of the plaintiff’s land and he had filed a bill to enjoin, and also a petition for viewers to assess damages. It was held that there was no taking of any of plaintiff’s property and therefore no case for the appointment of viewers; that the remedy of the owner for special damages was by an action of trespass, though a court of equity might properly compel the gas company to file a bond to secure damages, before dissolving a preliminary injunction; that the right of the city to the use of the street for the purpose of urban servitudes, such as gas and water pipes, embraced the entire street, under the sidewalks as well as under the cartway; and that the right of action of the abutting owner extended only to such damages as might be done in the laying of the pipe, interruption of access, etc.^*

Under the permission of the city, our brother Williams says, the company “ might lawfully enter upon the streets to lay its pipes without liability to lot owners therefor. But it is contended that the sidewalks are not a part of the street, and that in laying its pipes under the sidewalk the gas company has entered private property. . . . This contention cannot be sustained. The street includes the whole of the land laid out for public use as a highway. The city determines how much of it shall be devoted to a cartwaj', and how much to a footway. The separation of one from the other by a line of curbing is for the security of that part of the public that passes along the streets on foot, and for no other purpose. The learned judge of the court below took the same view of this question, and affirmed the point that ‘the defendants have the same right in the sidewalks as they would have in that portion of the street lying between the curbstones.’ The situation of the defendants under this ruling was precisely the same as it would have been had the gas main been laid under the cartway.”

The facts of that case are not distinguishable from those of the present. The water company laid its pipes with the consent of the city. Whether it had complied with the direction to apply to the city surveyor for the proper lines was not a matter with which the plaintiff had any concern. It is true the plaintiff had a qualified or permissive interest, by virtue of the ordinances, in the soil under the footwalk, and had he previously exercised his right by building steps, cellar doors, etc., which the pipe interfered with, he would have had a cause of action for that special injury, under McDevitt v. Gas Co. His right however was not absolute, but subject to the grant of a permit by the city, and such permit might be refused either directly or consequentially by the prior grant of an interfering right to the water company. As the pipe was laid before the plaintiff sought to avail himself of the right under the ordinances, he could only exercise the latter subject to the prior right of the water company, and there were no special damages to be recovered.

The plaintiff therefore had no cause of action, and for this reason the verdict was rightly directed for the defendants. The other questions argued are not really raised by the case.

Judgment affirmed.

* The fourth paragraph of the syllabus is too broad in including “ consequential injury to their property due to the proximity of the pipe line ” in tlie elements of damage recoverable in trespass.