Mayor of Pittsburgh v. Scott

— 314 — The-.'opinion of the court Was delivered by Rogers, J. It is an admitted principle, that the right of eminent*• domain oriiinherent sovereign'power]-'.'gives .tire'.llegiMatQ.reiithe-’Cqntrol'*of private, property for- public -use.-; ¡For the-uigHt'.of-property,-¡in' every-* Well-regulated community, is-subservient.tóíthé general.welfare!' This right is ¡explicitly, recognised in the Constitution of Pennsylvania, art. 9, sec. 10, with -most: important and salutary-restrictions; ■ Ih that article it: is .declared that-no: man’s-property'shall be-taken or applied to pub-lie usefwithout.themonsenf bfh'isrépresentátives, and-wiíhóut-justcompensation being made. . As-a -general rule,:it-rests, in the wisdom of the.legislature;to determine- what.is a public use/andmlso the-necessity of taking the property of an individual for. that purpose. The*right.óf" eminent domain does not authorize -the -government to=take- the property of the citizen-for the mere purposé of transferring it tó another, ¡evemfbr a-full; compensation], wherithé public- is- hot- interested in • the - transfer. Such: arbitrary, exercise of power-would bean infringement of the Constjt-utiqn, as. not being .within: the. .power delegated by the people'to-the legislature. To justify the exercise of this right, it must be for the- use of- the public, -to be ¡determined.-in.'the first place'-by:the-legislature, subject, however, to correction; or ¡restriction,- where-it clearly appears,, the.-right: is* abused .either by ¡design,--which-we -.cannot wall suppose,- or, what is more to-be apprehendedj.-by.¡hasty.-an'd improvident-legislation. The right of eminent domain, as, has been repeatedly held, may. be-. exercised, by the government-through its immediate .officers-or agents, or-indirectly through the medium.of corporate bodies', or private individuals. It may be exercised not only for the public safety, but also where-the interest, or even the convenience, of the state or its inhabitants, is concerned; as for. the .purpose of making turnpikes or other roads, railways, canals, ferries and bridges for the. accommodation of the public! If they have the power for the purposes above stated, they have' also the power]' as was .done here, to táke individual property for a. public street, of for a public landing. These are improvements, in which not only have the people of Pittsburgh an interest, but they effect more or less every citizen of the Commonwealth, and, as would not be difficult to show, are of great benefit and advantage to the owners of lots, where property has been appropriated to that purpose. There is, therefore, nothing in the exception that the act is unconstitutional, as ’not qmbraced' in the power of eminent domain.. But the constitution requires a just compensation to the owner. It is ruled in Rogers v. Broadhead, 20 Johns. 735, since recognised in Bloodgood v. M. H. R. R. C., 18 Wend. 17, and in other cases, that' where private properly is taken for public use, it is not necessary.that — 315 — .the compensation should.be'actually-ascertained and paid,;before the -property is. appropriated- It is sufficient, if an adequate remedy.is provided,-by; which the individual can obtain compensation, without any unreasonable- delay., The- question is, have these constitutional requisitions been complied with? . Is the act of the 31st ;of March, -1836, entitled An act in relation, to, Duquesne Way,” constitutional?.. For I grant that the. property must not only be taken for public use, but .un- ' less the act provided a reasonable and adequate remedy for persons aggrieved, it is unconstitutional and. void, it being contrary to the letter í and spirit; of the. cpnstitution,. By the act, certain property belonging to themwners of lots on Penn.street,, in .the city of Pittsburgh, is taken for the purpose of enabling the select and common councils of the.city, . to define, locate, and cause -to be opened, ,a public street, to be -designated and-kpown by the name of Duquesne Way, of a certain width, , extending and running parallel .with Penn street in said city. After, the • way-shall have been located and opened, the councils are authorized to ■ fix and adopt, a convenient grade, for the space lying between the way ¡and low, water-mark, of the Alleghany river, to be thereafter occupied, .used, and .employed as a public landing. The act,empowers the c.oun-cils to .-make such -rules, regulations, and by-laws-regulating the, use , of the public landing, as they may think proper, and to charge and.enforce-the collection of such fees, tolls, and duties in the nature of wharf-age, as they may-deem just and expedient,..and to ex.er.eise in. every respect, over the. public street and public landing, when.tjie .same shall be opened, the same power and authority which they may or-can exercise by law. over the public streets and landings within the city., . It is further enacted, that when the directions; of the act shall; have, been complied with., the damages paid, or unclaimed, all lots which previous to the opening of the way were bounded by the Alleghany river, -shall for .ever thereafter be bounded by, and front-on, the way authorized, to be opened. The operation of the act undoubtedly isj that ipso facto., and by. force of the statute, when, the city, limits-and opens .Duquesne Way, and in other -respects complies with the. requisitions of the-law, the right not only to the street, but to the land appurtenant attached to the lots on-Penn street, bounded by the- river^ is transferred from ;the proprietors and vested. in the city, It; consequently- follows, that .the ..owners..of,the lot are entitled to, compensation not. only.for the ground occupied by.the street, but for. the value.of the landing, .at the margin of the river. It must he recollected, that the property of the lot holders extended to.the river, and the. property is taken from them and vested in the oity. . . - ,. . The question then recurSj have the legislature given them. an. ade — 316 — quate and reasonable remedy for every injury they may sustain, by reason of locating and opening Duquesne Way ? It would be disrespectful to a co-ordinate branch of the government to entertain the idea, fot an instant, that they ever could intend to take any man’s property, for any purpose whatever, without at the same time paying or providing a reasonable indemnity. Accordingly, we find that they have not been unmindful of their duty in this respect. For in the 4th sec. it is provided, that when the city councils have located and defined the limits of the way, they are directed to have two plans thereof made, showing the location and limits of the way, the streets and lots adjacent thereto, and the names of the owners. One plan is directed to be kept by the City Regulator, the other is ordered to be filed in the office of the Clerk of the Quarter Sessions. The plans are to be opened at all reasonable times, for the inspection of all persons wishing to examine them. They are directed to cause public notice to be given in two newspapers published in the city, for at least two weeks previous to a regular sitting of the Court of Quarter Sessions of the county, of the location and intended opening of the way, and of the place where the plans are deposited for inspection. The act further provides, that any person owning lots, to which the said way is adjacent, who shall consider that he has suffered damage by the location, may make application by petition to the next Court of Quarter Sessions following the publication of the said notice, who shall thereupon appoint twelve discreet and disinterested persons, who shall proceed to inquire, on actual view of the premises, whether any and what damage has or will be sustained by the petitioner, by reason of opening the said way. The viewers are to make report to the next court. It must be conceded, the remedy is in reasonable time; if exceptionable at all, it is that it is too prompt. But it is not objected to on that ground, but that it is not adequate, because, as the defendant contends, it is confined to damages sustained for the ground occupied by the street, and gives no remedy for a compensation for the value of the landing. If the objection be true in fact, the act is unconstitutional and void, it being a direct infringement on the 10th sec. 9th art. of the constitution. But this view of the case does great injustice to the legislature. It is a narrow construction of a highly beneficial act. We cannot admit the supposition, that the legislature intended to violate the constitution by withholding from, the owners of the adjacent lots the just compensation to which they are entitled. It will be observed, that the legislature have cautiously abstained from defining the rights of the lot-holders, as contra-distinguished from the rights of the public. - On this some doubts may have been cast, and for this reason they content — 317 — themselves with using language sufficiently- comprehensive of every interest to which the owners are justly entitled. They are entitled, upon every fair principle of construction, to compensation, at tire hands of an impartial jury, for any and every damage they may have sustained by reason of the opening of the way. Now, what injury has the defendant suffered by the action of the. city authorities ? for to that extent he has a right to claim compensation by the award of a jury. His lot, which, before, was bounded by tire river, is now bounded by the street. He is injured to the amount of the value of the property, of whatever nature and description, without limitation or restriction, which has been taken from him for public purposes, and vested in the city. If by force of his grant, which extends to the river, he has a right to a landing, of which we do not doubt, he has a right to claim a fair equivalent, to be assessed by a jury to be selected for that purpose. It weighs nothing on the scale, that he did not think proper to pursue the remedy pointed out in the act. He may have had reasons for this, of which we are ignorant. If he had applied for redress in the proper way, we cannot but suppose justice would have been done; and if refused, he would have had just cause of complaint to the judicial tribunals of the country, which are always open to the injured. The defendant cannot allege, that he omitted to act through ignorance of his rights. He was a member of the councils, — one of those who petitioned the council to open the way, — a member of the committee to whom the petition was referred, and in every stage a w'arm advocate, and participated in all the proceedings which resulted in opening the street. In addition, the defendant stood by and saw the city, without a whisper of objection on his part, make large expenditures and valuable improvements, not only to the street, but to the landing, to which he never asserts a title. His objections are, therefore, neither supported by law, nor has he any equity to favour his pretensions. The legislature, so far from being obnoxious to the charge of disregarding the title of the lot-holders, have taken unusual pains to preserve their rights. They provided that, before the way be opened, the provisions contained in the act for the assessment of damages and compensation to owners shall first be complied with. And again, the city are indirectly prohibited from opening the street and making the landing, until the damages, applied for in the manner pointed out, are paid. If Mr. Scott, or any other lot-holder, had had his damages assessed, whatever thosp damages might have been, the city could have taken no further steps until the damages were actually paid. If, however, the lot-holders omitted to have their damages ascertained, the different provisions of the act had full effect. The title — 318 — •of.thefloh-holders;:by-foree-of ¡the statute, waá -bounded-by-the¡-street, .ánd-'the remainder, inclúdingvthe.street-andlmdihg,'became the'prbiperty-.of ;tbe:.city, under, their ¡regulation.and. control^ ¡with express ¡power.to-userthe.same'-as- a public landing; to'improye-.ah& collect such Iges,-.■ tolls,¡ and:.duties,.-in, tire nature of wharfage, as they may deem .-just and expedient; .tó¡exercise',-.in every respect, over the said public .stfeptjánd p.ublic;lahdmg,"th'e same.'¡powers- and- aúthority-which they jmay- pr can exercise.- by, law oyer- the. other' public - streets • and landings -within the city...-- But when does.themúthority .to-exact toll for the use ;o£; the landing--commence i,' There is-, some ambiguity-in the act on this, .point./, arising -from -tire-difficulty’of determining when-the street shall be-deemed to be-opened; but we. think that, it shall be deemed to be-opened, ¡irí the language, of the act, when.the title is vested in the •city,-and-when-they have so. far completed the-landing and'grading as ■ffiat they may.jrjstly,deem it proper-ahd.right to 'exact toll.- -In other words,"they are at-liberty to.,exact a' reasonable- toll wlren part of tlie •Way-and'landing'is. made; and. are not, as is -contended by the defendant, borlnd .to; wait until the-whole way or grading is completed; Any.other 'construction of the act would injure the city/without benefit to!'¡any. ¡person. Itwould be unjust,.and.might have the effect of retarding this milch-usfeful. work, calculated to .add greatly to the beauty of the-'city and'the. convenience of commerce;. resulting, as it no doubt will,, ifi-providing a safe and valuable.harbour for.the increasing trade pf ¡this flourishing city.: It is a.most.impprtant and valuable imprpvement-Tbinyplving.&great'.expenditüre- pf mpney. and-labour — requiring much;.time; .and great economy to complete. ¡.And, moreover, it is necessary tp its success and-permanence that the work be done graduffily/.-so.a? to.withstand tbe-action of the-water, which would be apt, in the case ¡of-a flood, .unless caution-be used/to wash away-the labour of mpnths, or even, of year’s. - It. would be doing injustice, tp the city, that when pavt';ofr¡the street, and landingwas, put in proper order for the aceQmmpdation..of:.fhe public, that -it sho.uld be used for.the purposes pf ¡trade, wifh.o.Ut payment .of a reasonable, and ¡fair’ equivalent. -This, we. think,-.the legislature did'not contemplate — there is.nothing in the act which leads to such a conclusion! ■ 'The whole act-must be taken together.; and ¡-must-ré.céivé'such, a. construction' as will, cárry, out the great.-and beneficial design they had in'vibw.: The act was not intended for ¡the: private-‘emolument of any-person, but-was passed under the yell, founded belief that -the interest of the-public would be best prompted by- making a public landing, and giving the control of it to the city,-rather:than-let it remain'subject to the conflicting interests of private individuals.: -And the object deserves commendation, when it — 319 — cah-be-''éffected'witho'ut., impairing the rights: of’-individual -:p*0]pertyy: and.especially so, when it-benefits ‘the .owners' themselves'of'-the'5 property taken. : -k-.---¡' = The.ccmrt,-áf th&réquestrof¡' defendant’s counsel,¡charged'-'the -jury, • that: the evidence,.: admitting-its fruthy.'did-:not establish á‘- right' on -the" part of the plaintiffs to recover in the present form'-of -acti'oii'.' ‘ "It was; in proof ¡that two-pil¿s;of -bdardsj belonging?to Sdo'tt,'-were on the line of -Duquesne Way,.before 'and- at- the' time-the-süitwas-bróught. :It-: was :also- proved- that"thfe boards- so-laid in the’public-way wóuld and-: did cause some deviation in parís, &c/, employed by the city authoritiesfin carrying-dirt ap'd ¡other máterials'iforthé úse-of--thé-city-'f-that itWas’5 ah. yicónvenience: torthe city,- but; -not -more -'incoñveüifent -tó- theití -th'dii; to-others 'who. might: háve occasion, to [use-the-way; i-That-Scottren-'' deréd.liimself.'liable-to-an indictment-cannot be doubted,'but--whether-an action-lies: is .not so plain;:: 'The-lab js,-that"-no" action: lies-for- -a' public1 dr (dommon • nuisaiice',-' bht ’an: -indictment only;' ■ -béc-ause ■ the ■■ damage being common to alV-no"oné caii--assignhis particular proper-5 tion- of itq-.’or^if he'couMyit-would be ektremely-har'd-if everyone- was allowed- toíharass- thé-o'ffendef bdtliseparate5actions; 'For this reason5 no person,.’natural-' or-¡corporate,' can Have: am action for a-public riui-;' sanee-or ¡punish it,: but¡nüly--fbe¡Eommonwéálffi.:- -.:Tet; the rule -adihitSJ of• exceptions; / When a-.-private'person'suffers- soma-extraordinarydamage, beyond other citizens, by a public'nuisance-, in-that'case'he "¡ shall:have.a¡private:-satisfactioniby;action.• -■: As, if by means of a ditch dug across a public way, which is a common nuisance, a man suffer any injury by falling therein, then, for his particular damage, which is not "common1 to others, the party shall have his action. 3 Bl. C. 219. It is agreed, as a general principle, that for an obstruction to a highway, which is a common nuisance, an action cannot be"‘ Supported but byV person who lías súfféred some special damage. The various conflicting cases which have been decided, as to what constitutes special damage, are examined in Hughes v. Heiser, 1 Bin. 463. The court'came to the copclusion, in'opposition to some of the early, and to a more recent case in England,’ that to support an action for damages occasioned'by a common-nuisance, it is not necessary'that the damage-sustained should be direct; it is enough if it be consequential. In Hughes v. Heiser, thé plaintiff de-' dared that' he 'had prepared rafts, with intent to navigate them down the river, which was a public highway; and that he did navigate the'nr until he came 'tó a dam,, erected by the defendant, by which he was ' prevented'from passing down the-river with his raft. - It,Was held, that it was sufficient special damage to support an action. ■ Whether'it:-is' — 320 — a total or partial obstruction of the way, surely, cannot affect the right of action, as. that cannot depend on the question of injury. Then, in Hart v. Basset, 33 Charles 2, recognised in Hughes v. Heiser, an action was supported by a person entitled to tithes, who, in consequence of an obstruction in the highway, was forced to carry his tithes by a circuitous route. The- declaration alleged, that he was forced to carry them by a longer and more difficult w'ay, and no other damage was shown. To the same point is Chichester v. Lethbridge, Willes, 71, also cited in Hughes v. Heiser. In Alexander v. Kerr, 2 Rawle, 83, it is ruled, that an action on the case will lie for an injury to land, however inconsiderable, which is occasioned by a nuisance. That is a case of a private nuisance, and is a direct injury;.still,'we think it applicable to an injury done by a common nuisance, the consequence of which is that -another is hindered and delayed in his business. * It would not be so in England, where a distinction, which we have repudiated, is taken between direct and consequential damage. The action may be supported on either ground. The plaintiffs declare that the defendant prevented and hindered the wharf-master, appointed by the plaintiffs, from collecting tolls. This was a disturbance of the plaintiffs’ right, for which an action -will lie. Of this there was some evidence, although not strong, which, we think, ought to have been submitted to the jury. Judgment reversed, and a venire de novo awarded.