62 Pa. Super. 542 | Pa. Super. Ct. | 1916
Opinion by
The plaintiff is the owner of a lot fronting on Swede street in the Borough of Norristown, on which is erected a three-story brick building, the lower floor of which is a storeroom. The defendant constructed an elevated railway ‘track on the eastward side of Swede street in front of the plaintiff’s premises. The track is supported by iron posts about twenty feet in height on the top of which are placed trusses to sustain the rails. The posts are located along the curb line of the sidewalk and the superstructure projects over the sidewalk within about seven feet of the front wall of the building. The height of the structure is a little more than twenty-seven feet. Alleging damage to her property with respect to access, light and air because of the location of the elevated track this action was brought to recover for the injury. Two questions are raised: (1) did the plaintiff present evidence of title to the land occupied by the defendant; (2) is the defendant liable to the abutting owner for the authorized erection of an elevated structure in a public street where the premises were to some extent deprived of light and air. It appearing at the trial that there was no post in front of the plaintiff’s lot the question of obstructed access was not considered, but the question of depreciation caused by the obstruction to light and air was submitted to the jury. The plaintiff offered in evidence a recorded plot of the borough as laid out by the trustees of the University of Pennsyl
The right of the defendant to construct a line or lines of railway track on a street of a borough or city under the permission of the municipality without compensation to abutting property owners may be conceded. Such occupancy of the street is not the taking of private property within the meaning of the law entitling a person who has sustained a special injury to compensation. If the defendant’s line had been on the surface along the cartway the plaintiff could have had no redress for injury resulting therefrom. It is but a change in the use of the roadway and the form of vehicle and not a change in the use of the street. Such improvements are presumed to be for the advantage and benefit of all of the inhabitants of whom the abutting owner is one and although he may be affected in a way different from that of his neighbors his situation is one of damnum absque injuria. But the cases establishing this doctrine do not apply to a state of facts where the footway or a portion thereof on one side of the street is occupied by an elevated railway track in such close proximity to the building of an abutting owner as to obstruct the light and air to which he is entitled and which he enjoyed before the road was built. The reasons which apply to the occupancy of the surface of the street are not of like weight when considering the relation of abutting property owners to an elevated street railway erected over a sidewalk and close to the buildings of abutting owners,.
The judgment is affirmed.