29 A.2d 9 | Pa. | 1942
This is an appeal from the refusal of the Court below to strike off a non-suit in a land damage case. Plaintiffs were the owners of a lot fronting on Eastman Street in Mifflin Township, Allegheny County. According to the recorded plan, the street was dedicated as a fifty-foot street and it is now part of the State's secondary highway system, known as Legislative Route No. 02185. Plaintiffs' property fronted on the north side of this highway for a distance of 181 1/2 feet and extended backward a distance of 240 feet. On this lot were two dwelling houses and two garages. Eastman Street prior to its re-construction was unimproved except for a width of 14 to 16 feet surfaced with cinders.
In 1932 the State Highway Department, without preparing a plan,* proceeded to resurface and change the grade of the above route along the front of Plaintiffs' property. The improvement involved no change in the existing right-of-way lines and location of the State highway. The road in front of Plaintiffs' property had a legal width of fifty feet before and after the new work was done on it and none of Plaintiffs' property was actually taken for the right-of-way.
A plan prepared by an engineer employed by Plaintiffs, shows a line designated as "Ultimate Top of Slope", indicating an occupation of 1,200 square feet of slope *511
area required to support the highway. This was based upon theassumption that such would be the situation if the highway were widened to the full fifty-foot legal width at the center line grade. As a matter of fact, the slopes were constructed within
the fifty-foot legal width of the highway. The Plaintiffs' plan offered in evidence shows that the driveways to the garages have been graded to connect with the improved highway. On June 12, 1934, the Board of County Commissioners, of the County of Allegheny, passed a resolution agreeing to assume liability for property by reason of this improvement in Rural Route .02185, in Mifflin Township, between stations indicated in the resolution. This action was taken under the Act of April 13, 1933, P. L. 41, amending Section 16 of the Sproul Highway Act of May 31, 1911, P. L. 468, as amended (
After due proceedings viewers found that Plaintiffs were not entitled to damages and an appeal was taken to the Court of Common Pleas and there a non-suit was granted.
The Court below correctly held that whatever damage was done to the property of the Plaintiffs resulted only from the change of the grade of the then legally existing fifty-foot right-of-way, that any damages for which Allegheny County is made responsible, are only those for which the Commonwealth would otherwise be liable, and to support a recovery of damages from the Commonwealth in cases where it is not actually taken, these must be an act of the legislature expressly imposing such liability as the Court held in Heil v. Allegheny County,
Appellants cite Reid Creamery Dairy Supply Co. v.Philadelphia,
The order is affirmed.