Shaaber v. Reading City

Opinion by Mb, Justice Gbeen, The very grave difficulty in the way of appellant’s recovery is that he has no interest or right for which damages can be allowed. The street on which his building was erected was established and laid out by the proper authorities in 1868 in accordance with the provisions of the municipal charter. It was not until the year 1878 that he leased the ground and erected his building and when he did so he was subject to the operation of the 44th section of the Act of April 26, 1864, re [407] vising the charter of the city, which provides as follows: “ And if any owner or owners of real estate or his or their legal representatives or assigns shall build any house or other building within the line of any street, avenue or highway as surveyed and marked on the draft or plan aforesaid, after the approval and recording of the same, such owner or owners, representatives or assigns shall not be entitled to any damages which may be caused by the removal of such house or building for the opening or widening of any such street, avenue or highway.” As appellant was bound to know the law, and is to be charged with the consequences of such knowledge, it follows that he is not entitled to any damages on account of the removal of his building. This proposition is so entirely correct that the learned counsel for the appellant concedes that the plaintiff was not entitled to any damages caused by the removal of his building. It is equally clear that he is not entitled to any damages on account of his leasehold. By the terms of the lease he held a term of five years from November 1,1878, which terminated on the same date in 1883. By the fifth clause of the lease he was required to deliver up peaceable possession of the demised premises to the lessor at any time after the first day of November, 1883, upon receiving three months’ written notice so to do, from his lessor. The absolute determination of his lease rested with the lessor by the mere giving of three months’ written notice. Such notice was given to the appellant on the 8th day of March, 1889, and thereupon all his interest in the premises ceased entirely on the 8th day of June, 1889. In point of fact the city of Reading did not enter upon the premises and proceed to take down appellant’s building until about the beginning of October, 1889. Prior to their doing so they had given repeated notices to appellant to remove his building, which notices he disregarded. As the appellant’s interest in the term had altogether ceased on the 8th of June, 1889, he no longer had any right or title to the possession of the premises by virtue of his lease and hence had nothing for which he could be entitled to compensation by way of damages. His remaining in possession after that day gave him no right as a tenant. At best such occupancy was by the mere sufferance [408] of the lessor and conferred upon him no kind of estate in the land. The contention that there was a strong probability of a renewal or continuance of the tenancy which gave his leasehold a market value at the time the city demanded possession, is altogether untenable. His right as lessee was absolutely determined in conformity with the provisions of the lease and there could be no probability of a renewal or continuance of the tenancy possessing any market value after the notice to quit from the lessor was received. ■ That notice was immediately followed by notices from the city authorities to remove the building and there was nothing on the part of the lessor and the city, occurring after the notice to quit, which did or could give rise even to an expectation of any continuance of the term. In these circumstances we fail to discover that there was any possible interest of the appellant for which damages could be allowed. The proceedings both by the lessor and the city to determine the lease and open the street were in entire conformity with the law and were as expeditious as the circumstances permitted. The city followed up its notice to remove the building by positive action with no other delay than a reasonable consideration for the convenience of the appellant suggested, and no basis for an allowance of damages grows out of the fact of such brief delay. The city had the undoubted right to remove the appellant’s building because he had neglected or refused to obey their notice. His lease as a source of a legal right to have compensation had ceased to exist, and we are very clear that the learned court below was entirely correct in directing the jury to render a verdict for the defendant. The assignments are without merit and are dismissed Judgment affirmed.