South Twelfth Street

217 Pa. 362 | Pa. | 1907

Opinion by

Mr. Justice Stewart,

The right of the individual to compensation for land subjected by municipal authority to public use can only arise when the land has been taken. Until this occurs the owner has not been disturbed in his possession, and is consequently without injury. The plotting of a street through the land of a private owner is not a taking of the land ; it is simply the expression of a purpose to take it when occasion for the opening of the projected street arises. In this instance an interval of nearly forty years occurred between the plotting and the opening of the street. Appellant’s contention that the owner’s compensation is to be measured by the market value of the land, as of the date when the street was plotted, finds no support in reason or authority. It is sufficiently answered in what we have said.

Equally untenable is the other position taken, viz.: that if the true measure of compensation be the market value of the land when taken, the fact that no compensation could be recovered for the removal of any buildings erected on the bed of the proposed street after the same had been plotted, is to be considered as a circumstance affecting such market value. This is simply asserting the right of confiscation in a modified form, only feebly disguised. By reason of the plotting the owner is virtually denied the privilege of building on his land, and it is argued that with this privilege extinguished the land would have a much reduced value in the estimation of the average buyer. Of course, it would. But who is responsible for this reduction ? Not the owner; the impairment of value resulted from nothing he had done, but as the immediate consequence of the steps' taken by the municipality towards the appropriation, in invitum, of the owner’s land. In the present case it is quite clear that without the right to build upon the land, this narrow strip, sixty feet wide, located as it is, Avould be of little if any value. This then is the contention, that the municipality in the furtherance of public ends, having stripped the land of nearly its entire value, uoav Avhen it seeks to accomplish fully its purposes in connection therewith, is to be allowed to acquire the land by paying a sum measured by the little value the municipality has left in it. Such a result would be a travesty on the constitutional provision which requires in all such cases just compensation to be made for the property taken. Of course the case of Gamble v. Philadelphia, 162 Pa. 413, so much relied upon by the appellant, is no authority for any such doctrine. The only resemblance between this case and that is, that the demand in both was for' compensation for ground taken for a public street. In that case, the measure adopted was the market value of the land without the privilege of building thereon; but that Avas because the'owner himself, by his OAvn act, in conveying certain lots fronting on the proposed street, granted to his vendees the right of Avay upon and over the ground subsequently appropriated by the municipality, but Avhich Avas then his own individual property. This right of way so conveyed Avould have existed thereafter had the street never been open ; and neither the owner nor those claiming under him could have obstructed it by building or otherwise; so that when the city afterwards appropriated the land, this right of building on the land having been parted with by the owner, the city could only be called upon to make just compensation to the owner for what it had taken from him.

The assignments of error are overruled and the judgment is affirmed.