126 A. 781 | Pa. | 1924
Argued October 6, 1924. The northern terminus of the Allegheny Butler Plank Road was on the north bank of the Connoquenessing Creek, which it crossed by a wooden bridge at the foot of Main Street in Butler Borough. The creek was at one time the southern line of the borough. About thirty years ago the borough was extended, taking in the bridge and land on the south side of the creek. The plank road company continued to exercise control over its road until March, 1913, when its rights were conveyed to the state highway department under the Sproul Highway Act of May 31, 1911, P. L. 468, 481, and was made part of Route 72.
Butler Borough, now city, at no time exercised control over the plank road. In 1914 the bridge was closed by order of court because of its unsafe and defective condition. A little later one of the spans fell into the stream, and it was never afterwards used as a public highway. The State, in the fall of 1917, awarded a contract for the construction of a viaduct over practically the same route. The land on the south side of the *416 creek was so hilly that the way of the plank road and south Main Street, over which the viaduct was built, had a sixteen per cent grade to Morton Street, the next intersecting highway. From the creek and the bridge on the plank road, passing Etna Street a short distance, the plank road turns to the right, thence going southward through Butler to Allegheny. Along the creek in the city were two railroads.
The viaduct was designed by the state highway department as an elevated open crossing, being more suitable to the traveling public; its approach on the south side was nearly level with Brugh Avenue, a new street to be constructed between Morton and Etna under the proposed improvements. Under this structure, sufficient clearance was given on the old plank road, Etna and South Main, to enable vehicles to travel freely as before. To reach the viaduct and cross into old Butler proper from Etna Street, it was necessary to use the plank road a short distance, thence by a highway just constructed to the bridge which spanned the intervening space to the old town.
Work did not commence on the new bridge until after the war, and was not completed until 1921. Spang Company, owners of a manufacturing establishment on Etna Street, about 125 feet from the viaduct, had formerly used the wooden bridge to go into old Butler, and, when the new viaduct was being constructed, claimed damages before the Public Service Commission, assigning as a reason that the new structure took away the old crossing (the wooden bridge) which it had used for some years before, and substituted the viaduct, — that they were obliged to travel a longer distance and over a grade at one point of eight or nine per cent. Access to their property from the south must be made in this way and from other points beyond Brugh Avenue. The Public Service Commission denied their application and, on appeal to the Common Pleas of Butler County, a verdict *417 and a judgment in their favor were sustained; hence this appeal.
It will be noted, the sole claim here made is for an unlawful interference with access to the land. There is no cul-de-sac, no vacation of a street by court authority or any act of a municipality, no interference with light and air, or annoyance from dust, noise or unusual circumstances. There was no physical change in the lines of Etna Street or any street east of plaintiff's land. All streets directly leading into appellee's property are open as heretofore; so are all connecting streets (including the plank road), with the exception of the wooden bridge, which, as stated, had fallen into the creek years before. Appellee's claim for damages is under the Public Service Company Law of July 26, 1913, P. L. 1374.
The mere fact that appellee's property does not abut on the viaduct, if it is otherwise entitled to damages, will not preclude recovery, if it comes within the designation adjacent: Donnelly v. P. S.C.,
While an abutting owner's special right in a street as a means of access to his property is not limited to the part of the street on which his property abuts, his right is that of reasonable access in either direction which a street permits. Every slight inconvenience cannot be compensated in damages. The inconvenience here suffered was the same in kind and no greater in degree than could be claimed by all persons in that vicinity having occasion to use the street. See Howell v. Morrisville Boro.,
The judgment of the court below is reversed, and is here entered for the defendant.