265 Pa. 369 | Pa. | 1919
Opinion by
The question here is as to the liability of the Commonwealth for damages occasioned by the change of grade of a State highway. Appellants’ land abuts on the road leading from Pittsburgh to Butler, known as State Highway Route No. 72. By the improvement of this highway the grade thereof was raised, causing damage to the abutting property, but no change was made in the horizontal lines of the road. This occurred since the passage of the Act of May 31, 1911, P. L. 468, being the act for the establishment of a State highway department, etc., and is governed thereby.
In the original allotment of public lands six per cent was allowed for highways, which seems to be the reason for the well-settled rule that in the opening and improvement of public roads the landowner is entitled only to such redress as is given by statute, for his claim is a matter of grace and not of constitutional right: Snively v. Washington Township, 218 Pa. 249; Wagner v. Salzburg Twp., 132 Pa. 636; Lamoreux v. The County of Luzerne, 116 Pa. 195; Township of East Union v. Comrey, 100 Pa. 362; Workman et al. v. Mifflin, 30 Pa. 362, 370; Plank-Road Company v. Thomas, 20 Pa. 91; Shoe v. Nether Providence Twp., 3 Pa. Superior Ct. 137. The Commonwealth in the construction of public highways is in exercise of its sovereign authority and never liable for damages unless made so by express enactment.
Section 16 of the State Highway Act of May 1, 1905, P. L. 324, 325, provided for compensation, “In case any person or persons, or corporations, shall sustain damage by any change in grade, or by the taking of land to alter the location of any highway which may be improved under this act”; but by the Act of June 8, 1907, P. L. 510;
As the words “change of grade” were inserted in the Act of 1905 and omitted from the Acts of 1907 and 1911, we must assume that a change of meaning was thereby
The provisions above quoted from the Act of 1911, to the effect that the proceedings for the ascertainment and assessment of damages shall be governed by existing laws, etc., refers to the method of procedure for the collection of damages imposed upon the Commonwealth by the earlier clause of the section, but creates no new liar bility.
The title of the Act of 1911 (P. L. 468), includes, inter alia, a clause, “providing for the payment of damages in taking of property, or otherwise, in the improvement thereof [of highways].” And appellants earnestly contend that the use of the words, “or otherwise” in the title shows an intent to impose upon the Commonwealth liability for all damages resulting from improvement of State highways, including change of grade, and that the act should be so construed. Such contention cannot be accepted. The liability is imposed by the enacting clause, not by the title; while the latter is regarded as a part of the statute and may properly be considered in its construction (Halderman’s App., 104 Pa. 251, 259; Eby’s App., 70 Pa. 311, 314; Pennsylvania R. R. Co. v. Riblet, 66 Pa. 164; Yeager v. Weaver, 64 Pa. 425, 428; Brink v. Marsh, 53 Pa. Superior Ct. 293); yet the title cannot give vitality to a subject omitted from the body of the act; for while a statute cannot be broader than its title, the title may be broader than the statute; if so, the latter must control. Neither the title nor body of the Act of 1911 refers to damage for change of grade, and it cannot be written into the enacting clause merely because it might come within the general provisions of the title.
The change of grade of an existing highway is not the taking or application of private property to public use within the inhibition of the clause of Sec. 10 of Article I of the Constitution, which says, “nor shall private property be taken or applied to public use without authority of law and without just compensation being first made or secured.” And, under the authorities, it is clear that Sec. 8 of Art. XYI of the Constitution, requiring corporations and individuals invested with the privilege of taking private property for public use to make or secure compensation for the property taken, injured or destroyed, has no application to the Commonwealth engaged in the improvement of State highways.
In Allison v. Bigelow, 68 Pa. Superior Ct. 219, there was an actual taking of land by the Commonwealth, which controlling fact distinguishes that case from the present.
A full consideration of the present case will be found in State Highway Route No. 72, 71 Pa. Superior Ct. 85. As there is no constitutional or statutory liability upon the Commonwealth for the injury complained of, the Superior Court properly rejected appellants’ claim.
The assignments of error are overruled and the judgment of the Superior Court is affirmed at the costs of appellants.