Volkmar Street, Philadelphia

| Pa. | Feb 25, 1889

Opinion,

Me. Justice Williams:

There is but a single question raised by this record, but it is one of considerable practical importance. Volkmar street has existed for some years on the maps of Philadelphia as a projected or plotted street. It was never laid out by the Court of Quarter Sessions of Philadelphia county or by an ordinance of the city. As plotted it passed over lands belonging to John Gf. Maier, and in 1877 he applied for and obtained the appointment by the, Court of Quarter Sessions of viewers to assess the damages to be sustained by him upon the opening of the street. The viewers made a report in his favor, which the court in 1878 set aside for reasons which do not appear in the record now before us. The street remained unopened, and in 1880 a petition was presented to the court under an act of assembly known as the Kensington act, passed in 1820, praying the court to order the opening of Volkmar street. This was so far proceeded in that in October, 1880, the court made the order prayed for and a copy thereof was issued, directed to the chief commissioner of highways of the city, requiring him to open said street. He neither opened it nor made any return to the order informing the court why he declined to do so. The street remains unopened down to the present time, and the land over which it is projected on the maps remains in the actual possession of John Gf. Maier, the owner, and is inclosed and cultivated with his adjoining lands.

In April, 1888, the present proceeding was begun by petition asking for the appointment of viewers to assess the damages to be sustained by Mr. Maier by the opening of the street; but in June, 1888, the court set aside the appointment and quashed the petition, holding that the petitioner’s claim to compensation was barred by the statute of limitations, not having been presented within six years after the order of October, 1880, directing the chief commissioner of highways to open the street.

The question thus presented is, when does the right of action accrue to a land owner for the injury done him by the opening of a street upon his land? Is it when an order is made by the court directed to a city officer, which may slumber for many years without an effort at execution ? Or is it when some act is done in obedience to the order which disturbs the actual- possession of the owner ? If damages were being sought in a common-law form of action there would be no doubt about the answer to this question. The plaintiff could not sustain an action of trespass quare clausum while remaining in the undisturbed possession of his land. But it is said this proceeding is statutory, and a different rule must prevail because of the provisions of the statute.

The order of 1880 to open this street was mad^ under the provisions of the Kensington act, which contains the following important provision: “Provided always, That no such street, road, lane, or alley so laid out shall be opened and appropriated to public use until the owner or owners of the ground through and over which the same may pass shall have been compensated for any damage he or they may sustain thereby.” If, therefore, the city had been disposed to obey the order of the court and to open Volkmar street, its duty was made plain by the statute. It ha¿ first to take the steps necessary to have the damages ascertained. After this was done it had to pay or secure the payment of the amount of the ascertained damages to the .owner of the land. Then, and not until then, could the city open tire street and appropriate it to public use.

If no actual opening was desired or intended, no duty rested on the city to ascertain and pay the damages. By disregarding the order issued to the chief commissioner of highways she could leave, as she has done, the land in the uninterrupted possession of the owner, and her own funds to be appropriated to more pressing needs. Such being the position of the city, how is it possible that the land owner can suffer from this unexecuted order ? It was not directed to him. He was charged with no duty in regard to its execution. It could affect him only when its execution was begun by the proper city officer. If he knew of its existence, he knew also that it was directed to an officer of the city, and that the first step in its execution must be to ascertain, and the next to pay, the damages sustained by him. He was not called upon by any provision of the Kensington act, nor by anything done to him or his lands by the city to institute proceedings against her. He had no cause of action against her.

If tbe rule laid down by the learned judge of the court below is correct, however, the city has acquired in spite of herself what she has steadily refused to appropriate, and the land owner has hopelessly lost what he has all the time had, and still has in his own possession. The proviso in the Kensington act which declares that “ no such street, lane, or alley shall be opened and appropriated to public use until the owner of the ground over which the same may pass shall have been compensated,” means nothing if this view of the case be sustained. The city has only to say, we will not obey the order of the court to open this street, because the street is not needed for the public accommodation, and then wait for the six years to roll around. When the time has passed the city can say, we have changed our mind; we will execute the order and open the street. If the land owner asks for the compensation which the statute secured to him as a condition precedent to the opening of the street, the city can reply the statute of limitations and tell him, that while she was refusing to appropriate his land and leaving him to continue its cultivation, she had paid him by the lapse of time. We cannot agree to this. The statute of limitations cannot begin to run upon a demand until it is ripe for collection. A right of action must exist before it can be barred. As between the city and the land owner no right of action exists under the Kensington act, or upon general principles, for the recovery of damages until some act done, or notice or demand made, affecting, or relating to, the possession or appropriation of the land.

We reach the affirmance of this judgment by holding a doctrine exactly opposite to that laid down in the court below. We say, not that the statute has already run upon the plaintiff’s demand, but that it has not yet begun to run. The land owner is in the quiet and peaceable possession of his own, and unless the city officers change their minds about the desirability of opening Volkmar street he may so continue for years to come. When they do change their minds, the first step for them to take, towards the execution of the order, is to have the damages ascertained and paid. Whether the owner might give notice of his intention to abandon the land covered by the plotted street to the city, and proceed to have his damages ascertained and paid, is not now before us, and we express no opinion about it.

The order of the court below setting aside the appointment of viewers and quashing the petition is now affirmed.