Grugan v. Philadelphia

Opinion by Mr. Justice McCollum, The appellees are the owners of a tract of land containing — 343 — about five acres situate ou and crossed by Reed, T wenty-eighth and Dickinson streets in the city of Philadelphia, and used, prior to 1889, as a brickyard. On the 21st of October, 1889, an ordinance authorizing the opening of Twenty-eighth street from Gray’s Perry road to Reed street was passed by councils and approved by the mayor. The ordinance provided that the director of the Department of Public Works should notify the owners of property over and through which the street would pass, that, at the expiration of three months from the time of the notice, the street would be required for public use, and it also authorized and directed the mayor to enter security on behalf of the city for the payment of any damages which migh.t be assessed against it by reason of the opening of the street. In conformity with the provisions of this ordinance the city proceeded to open the street, and took about one sixth of an acre of the appellees’ land for public use. The appellees then instituted proceedings for the assessment and recovery of the damages they sustained by reason of the appropriation of their land and the opening of the street, which proceedings, on the trial in the court below, resulted in a judgment in their favor for $1,403.38. From this judgment the city appealed and assigned as error certain rulings on offers of evidence and certain instructions to the jury. The first specification complains of the rejection of the appellant’s offer of “ the report of a road jury, under date of September, 1877.” It will readily be seen that the offer was incomplete and obscure. It was impossible to discover from its terms whether the report related to the opening of Twenty-eighth street or of some other 'street. Its purpose was not stated, nor did it contain enough to enable the court to determine intelligently whether it was relevant to the issue. But waiving the defects in the offer, and assuming that the report referred to was made by a jury of six appointed “ to view and report upon the propriety and necessity of opening Twenty-eighth street from Park street to Reed street,” was it material? It certainly was not, considered by itself. If it was relevant or material at all, it was only so in connection with the petition and the subsequent proceedings in relation to it. The specification of error alleges that a jury so appointed reported, on the 29th‘ of September, 1877, in favor of opening “ Twenty-eighth — 344 — street between the points named.” The argument based on the report is that the property owner loses his right to compensation for an injury to his lot by the opening of the street, unless he commences proceedings for the ascertainment and recovery of it within six years from the time the report was made. Of course if this is so, the appellees have no claim which they can successfully assert, because they did not present a petition for viewers to assess their damages before June, 1890. But a jury’s report in favor of opening a street is not the equivalent of an actual opening of it. The substitution of the former for the latter as the time from which the limitation runs is not warranted by reason or authority. The 7th section of the act of June 13, 1836, P. L. 556, provides that the owner of any land through which a public road shall be opened may, within one year from the opening of the same, petition the court of quarter sessions of the proper county for the appointment of six disinterested persons to view the premises and assess his damages. In considering the limitation on the right of action for road damages, and construing the statute which imposes it, this court said in Jarden v. Philadelphia, Wilmington and Baltimore Railroad Co., 3 Wharton, 509, that “ if the owner of the land should present his petition to the court of quarter sessions, asking for viewers to assess the damages he may have sustained, he must set forth and show that the road has been opened ; it is not sufficient to show that it has been laid out. In many instances streets have been laid out several years before they are opened, and in the meanwhile are inclosed and occupied by the owner without any visible difference from his other property ; and the public is not bound to pay for them until they are actually opened for public use as a highway, and become thus appropriated to them as their property, and the exclusive right and occupation of the former owner is taken away. And for this reason the period of limitation prescribed, the year to which the owner is restricted for filing his petition for the assessment of damages, commences not from the laying out but from the opening of the road.” In Lewistown Road, 8 Pa. 109, this court, following the principle laid down in Commonwealth v. McAllister, 2 Watts, 190, held that each property owner must present his petition, for viewers to assess damages, within one year from the time the street was opened through his lot; that — 345 — the year, mentioned in the act of 1886, commenced as to him at the time his land was taken by the opening of the street through it, and not from the time when the whole street was finished and effectually opened for public use. The same principle is applicable t'o a proceeding to recover damages caused by a change of grade: Ridge Avenue, 99 Pa. 469; City of Philadelphia v. Wright, 100 Pa. 235. It has been decided since, that the limitation of one year, prescribed in section 7 of the act of 1836, was abrogated by article 3, section 21 of the constitution of 1874 : Grape Street, 103 Pa. 121. But the constitutional provision referred to does not change the time from which the limitation runs; it merely enlarges the period within which the application for viewers to assess damages may be made. The second specification relates to the rejection of the appellant’s off.er of the catalogue of the public sale at which the appellees purchased their land. The purpose of the offer was to show that in connection with the description of the land bought by them, the words “ Twenty-eighth street opened and damages paid” appeared. If these.words are applicable to that portion of the street located on the appellees’ lot, they constitute 'a manifestly false statement, because Twenty-eighth street was not opened at that point at the time of the sale, and no one pretends that damages were assessed and paid on account of the location, or of the report of viewers in favor of opening it. It matters not whether this statement was printed in the catalogue or made verbally at the sale. In either case it was a mere declaration by the auctioneers, and it did not affect the liability of the city for damages caused by the opening of the street, or prevent the lot owner from claiming them. The third specification complains that the objections to a flagrantly leading question were sustained. The objectionable question was in these words : “ The property was sold as Twenty-eighth street being opened?” This was more in the nature of an assertion than an inquiry, and it was put by the counsel for the city to the city’s own witness. It might have been properly rejected on the ground that it was violative of the rules which regulate the examination of witnesses on ■ the trial of causes in a court of justice. But, aside from the objections mentioned, it was an attempt to introduce, in another form, a — 346 — matter which we held, in passing upon the second specification, was immaterial and entitled to no influence in the decision of this case. The remaining, specifications refer to the instructions. The learned judge charged the jury as follows: “The question in this case, put in a few words, is, whether the opening of this street, so far as its effect upon the value of property is concerned, was premature or not, and that is the problem which it is'yóur duty to settle.” This instruction is the subject of complaint in the fourth specification of error, and considerable prominence was given to it by the substantial repetition of it in the portions of the charge on which the fifth and seventh specifications are based. We. are unable to see what the jury had to do with the question thus submitted to them. It was their duty to ascertain from the evidence what damages, if any, the appellees sustained by the opening of Twenty-eighth street through their property, but they were not charged with the duty of determining whether the opening of it should have been postponed to a later period. In other words, it was not within their province to review the proceedings in the court of quarter sessions, or the action of the city, in reference to the time of opening. We think therefore that the instruction was erroneous, and we cannot say that it was harmless. In ascertaining the damages sustained by the appellees by reason of the opening of Twenty-eighth street, the jury had no right to consider the inconvenience and damage which might arise from the subsequent opening of Reed street: Negley Avenue, 146 Pa. 456. In cases of this kind if there is no depreciation in the market value of the land in consequence of the improvement, the landowner is not entitled to damages, because he has sustained none. Applying this principle to the present ease we find that the true inquiry for the jury was, how did the opening of Twenty-eighth street through appellees’ property affect the market value of it ? Did the opening of the street add to or detract from that value ? If it impaired the value of the property the amount of the depreciation caused by it was the measure of the damages. It was proper for the witnesses to explain how the property was injured and how it was benefited by the opening of the street, and it was proper for the jury to consider this — 347 — testimony as affecting' market value. But the jury had no right to allow, as a distinct item of claim, the cost of removing a house from the bed of the street: Chambers v. The Borough of South Chester, 140 Pa. 510. If on a retrial it shall appear that Twenty-eighth street was laid out on the plans of the city after the confirmation of said plans, and that the appellees’' house was erected on said street after it was so laid out, the house must be removed at their expense : Act of Dec. 27,1871, P.L. 1800. ' The objection that the charge cannot be reviewed here becausé it was not excepted to in the court below is answered by Janney v. Howard, 150 Pa. 339. The fourth, fifth, sixth, seventh and eighth specifications are sustained and the other specifications are overruled. Judgment reversed and venire facias de novo awarded.