O'Brien v. P. S. V. R.

Opinion, Mr. Justice Clark : This action on the case was brought by Johanna O’Brien, executrix of the last will and testament of Jeremiah O’Brien, deceased, to recover damages for an alleged consequential injury to certain real property of said Jeremiah O’Brien, in Conshohocken, arising out of the location and construction of the Pennsylvania Schuylkill Valley Railroad. The railroad, which was located upon the company’s own ground, runs through Conshohocken, in a northwesterly direction, parallel with, but north of, Marble street, crossing at right angles Maple, Oak, Forrest and Fayette streets. O’Brien’s property consisted of a lot on the corner of Marble and Forrest, and other lots adjoining on the south; also another lot on Oak street, some distance south of Marble. Thus, it will be observed, the railroad was north and O’Brien’s properties were all south of Marble street. The grade of the railroad required an excavation of some thirteen or fourteen feet to be made at the several street crossings. When the work was commenced, a temporary bridge was thrown over Oak street, until the entire excavation was complete, when a permanent bridge was built over Forrest; then the temporary structure over Oak was removed, the street fenced across, and it so remains. The bridge over Forrest is elevated several feet above the grade line of the street, and the approach is so steep and difficult as to greatly impede and obstruct travel over it. The plaintiff in her declaration complains in substance, that by reason of the premises the streets and highways mentioned are obstructed, [189] reasonable access to tbe plaintiff’s property prevented, tbe property rendered inconvenient for use as a habitation, and the value thereof greatly depreciated; and, although no part of the property has been taken, yet, she alleges that in consequence of the construction of the road, it has been injured and in great measure destroyed. Jeremiah O’Brien died on November 17, 1888, and it seems to be conceded that the railroad had been located, and the excavation of these streets commenced before that date, but the work was not completed until about April 1, 1884. The court instructed the jury, if they should find that the excavation was made, and the bridge built after the death of O’Brien, the plaintiff could not maintain her suit as executrix. “ I instruct you,” says the learned judge, “ that the person who was the owner of the property at the time the railroad company constructed its railway over Oak street and over Forrest street, is the party who is entitled to recover the damages; and by that I mean the party who owned the property at the completion of that part of the railway that caused the injury, whereof complaint is now made.....It will be important for you to determine under this ruling of the court, who was the owner of the property at the time the railroad was completed at Oak street and at Forrest street, in such manner as to occasion the damages for which the complaint is brought. .... If you find that the obstruction or excavation in Oak street, which caused injury to these properties, was not completed on November 17,1888, then the plaintiff cannot recover any damages for the obstruction of Oak street in this case.” This instruction of the court is the only error assigned. No other question affecting the plaintiff’s right to recover is raised on this record. The right of action is based on the eighth section of the sixteenth article of the new constitution, which provides that: “Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured, or destroyed by the construction or enlargement of their works, highways, or improvements, which compensation shall be paid or secured before such taking, injury or destruction.” The provision for an actual taking, it will be observed, is precisely the same as for a consequential injury to [190] property; the section applies equally and alike in both cases. If O’Brien’s property has been injured within the meaning of this section of the constitution, it is plain that the compensation was payable before the injury was done, and the right of action certainly accrued at the time the compensation was to be made. The provisions of the constitution are, in this respect, analogous to those of the general railroad law of February 19, 1849, which provides “ that before such company shall enter upon, or take possession of any such lands or material, they shall make ample compensation to the owner, or owners thereof, or tender adequate security therefor.” It has been repeatedly held, construing this act of 1849, that when the railroad has been located, the land has been taken and appropriated for public use; that the right of the landowner to sue for his damages is complete, and he may recover all which may be caused by the location and by the subsequent construction; that he can have but one action, and that the damages cannot be severed: Wadhams v. Railroad Co., 42 Pa. 310; Beale v. Penn. R. Co., 86 Pa. 509. The constitutional provision must, we think, receive a similar construction. If the damages must be paid or secured before the injury, it follows, that as soon as the work is actually undertaken at the point where the injury is done, according to the plans and purposes of the company, as defined by their location, grade, and general scheme of construction, the injury is complete; and, if the damages are neither paid nor secured, an action may be maintained for the damages consequent upon the completion of the road in accordance therewith. The action is not for an ordinary trespass ; no actual trespass was committed; the injury, if any, is purely consequential. It is an injury arising from the proposed construction and completion of the road, which has been already undertaken; it is a single injury entire and indivisible, and the damages cannot be severed. There can, therefore, be but one action, and that action, as we have said, may be brought as soon as the work which results in the injury complained of, is undertaken. It is not in conformity with either the letter or the spirit of the constitution to hold that the right of action shall be postponed until the injury is complete, for the provision is plain that “ the compensation shall be paid or secured before [191] the taking, injury, or destruction.” Moreover, if the right of action be thus postponed, it would be in the power of the company, by a tardy performance, to delay the action indefinitely. The action is for consequential damages on the principles of the common law, but the right of action, in advance of the injury, is conferred by the provisions of the constitution, and in this respect, the present case differs from the Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 410. The case of Buckwalter v. Black Rock Bridge Co., 38 Pa. 281, is more in accord with the facts and principles of this case. In that case, the charter of the bridge company provided, in a certain contingency, for the payment of consequential damages to the owner of a ferry over the stream upon which the bridge was to be built. It provided for the assessment of all damages which the owner of the ferry “ shall sustain by reason of the erection of the said bridge”; which damages, it was provided, should “be paid by the said company before the erection of said bridge.” The damages were assessed before the work began, but were estimated according to the injury which the ferryman would sustain when the work was complete. Whether Jeremiah O’Brien, by the construction of this railroad, suffered any injury, peculiar to himself, and different in kind and degree from that which is sustained by the general public, is a question not raised by the assignments of error. That question is, therefore, not before us; all that we do decide is, that if the injury is such as was contemplated by the constitution, the right of action accrued when this particular part of the work was actually undertaken. The judgment is therefore reversed, and a venire facias de novo awarded.