Ruscomb Street, 33 Pa. Super. 148

Ruscomb Street

33 Pa. Super. 148 | Pa. Super. Ct. | 1907

Opinion by

Rice, P. J.,

This is the same case that is reported in 30 Pa. Superior Ct. 476. As shown by the opinion, the decision there reported was based on our supposition that Twentieth street was an open street and connected with the general system of streets to the south of Rockland street. This supposition was warranted by the map or plan submitted, and we discovered nothing in either paper-book to show that the map or plan was incorrect in this particular. But it was alleged in the application for reargument, and is now conceded by counsel for the city, that the map or plan was not correct and that at the time of the vacation, as well as of the view for assessment of damages, Nineteenth street, Uber street and Twentieth street were not open north of Ruscomb street or south of Rockland street, and that Rockland street was not open. The situation is sufficiently shown for present purposes by the following sketch. It is thus seen — speaking now of the lots abutting on Ruscomb street between Nineteenth street on the east and Twentieth street on the west — that the vacation of a part of Ruscomb street west of Twentieth street left but one mode of access from the general system of streets in the vicinity, whereas before the vacation there were two. Were it not for Twentieth street, Uber street and Nineteenth street, the case, so far as the properties above referred to are concerned, could not be distinguished from the Melon street case, 182 Pa. 397. But the fact that between the vacated part of a street and the next intersecting street there are blind streets, which open out of •the street, but afford no means of access to the general system *150of streets in the vicinity, cannot prevent the application of the principle upon which that case was decided. It may affect the damages, but upon that question the owner is entitled to be heard before the jury upon the pending appeal from the report of viewers, unless upon the trial of the case facts are developed which do not now appear. It follows that the assignments of error which relate to the lots abutting on Ruscomb street must be sustained.

The other assignments relate to lots which do not abut onRuscomb street, nor upon streets that are closed at one end by the vacation of the part of the street between Twentieth street and the western line of the Germantown and Chestnut Hill Railway. Access to these lots from Ruscomb street, and from the general system of streets lying west of Nineteenth street, remains undisturbed; but in order to reach East Logan street it is necessary to travel further than before the vacation. Notwithstanding the able and earnest argument of appellant’s counsel we remain of opinion, after full reconsideration of the question, that this is not such a special injury, differing in kind from the inconvenience sustained by property *151owners on other streets, and other members of the public desiring to reach East Logan street by way of Ruscomb street, as gives the owner of these lots standing to claim damages by reason of the vacation of the portion of Ruscomb street above described. The general subject is fully discussed in the opinion of the learned judge below and our former opinion, and we do not deem it necessary to add anything further.

And now, February 25, 1907, after reargument and re consideration of this appeal, the order heretofore made is changed so as to be as follows : The first, third and tenth assignments, and the seventh assignment, so far as the latter assignment relates to the lot on the southeast corner of Twentieth and Ruscomb streets, are sustained, and the order of the court below so far as it relates to the lots referred to in the foregoing is reversed: the second, fourth, fifth, sixth, eighth, ninth and seventh assignments so far as it relates to the premises on Twentieth street at corner of Rockland street, are overruled, and the order so far as it relates to the several lots referred to is affirmed.