55 Pa. 340 | Pa. | 1867
The opinion of the court was delivered, November 7th 1867, by
— If the insufficiency of the report of the viewers be overlooked, and we take the case, not merely as it appears of record, but as the appellant alleges it to be, it is evi
We think the court were right. Nothing was taken from the appellant of which he has a right to complain. The public, to whom the street belonged for purposes of travel and transportation, had a right, for their own convenience, to remove rails, which had been lawfully laid, to another part of the street.
I say the public had a right to do this, and because the railroad company acted by public authority, they had the same right, and if this exercise of a public right over a public highway brought the rails nearer to the complainant than was agreeable, it was damnum absque injuria. As it was not a taking of any of his property within the meaning of the acts of incorporation, so it was not such an entry as would be a trespass at common law, and therefore the Acts of Assembly cannot be extended to embrace it, for the legislature evidently meant to provide for nothing that was not remedial at common law: Zimmerman v. The Union Canal Co., 1 W. & S. 352; Watson v. Pittsburg & Connellsville Railroad Co., 1 Wright 480.
It was suggested in argument that the 10th section of the General Bailroad Law of 1849 covers the case, but it is believed that the Pennsylvania Central Company is not subject to that act, but stands on its own acts of incorporation, which antedate the general law. If this be not so, the complainant did not bring his case within the provisions of the act, for he does not complain that the' entry was made into lands adjoining or in the neighborhood of the road to take materials therefor, nor did he complain of damages by reason of any excavation or embankment made in the construction of the road. What, he complained of was, that the company had constructed a railroad over and through his property and lot of ground, and that in the construction of said road they have occupied the pavement and public street in front of said lot of ground. There was some evidence that the new tracks had been raised 3 or 4 inches in the street, and that there was some filling done in
To entitle an owner of the soil to damages for a change by public authority of a highway across his land from one kind of passage to another he must ground his claim in an Act of Assembly, and the appellant having failed to show any act that authorized the assessment of damages, the court were right in setting it aside.
The decree is affirmed.