J. G. Brill Co. v. City of Philadelphia

Opinion by Mr. Justice Williams, The plaintiff is the owner of a tract of land lying in the outskirts of the city of Philadelphia containing thirty-six acres. It is irregular in shape. Its surface has not been graded. No streets have been opened through it by the city or the owner. At one of its angles it has a front of four hundred feet on Bridge street. This street has been depressed by the action of the city in order to avoid a grade crossing of the Phila. and Trenton railroad, whose tracks adjoin the plaintiff’s land. This was a proceeding to determine the damages suffered by the plaintiff [4] in consequence of the depression of Bridge street so as to secure an under grade crossing at this point. The plaintiff gave evidence to show the effect of the depression upon the value of his Bridge street front; and then proceeded to show by real estate dealers that the value of his tract, not fronting on this street, had been reduced at least ten thousand dollars more because of the uncertainty as to what the city might do hereafter in regard to opening streets through it. The learned judge was asked by a written point to withdraw this evidence from the jury and instruct them that “ any damage to be occasioned by the opening of streets in the future could not be considered now, but could be recovered when such streets were actually opened.” This instruction was refused and the evidence submitted to a jury as proper to be taken into consideration. He said “ But if the uncertainty of the city’s action in connection Avith the opening of future streets affects the value of property, as Mr. Ritchie thinks it does, then you can find that the property is worth less because the city has not defined its future policy in regard to the grade of these streets.” This instruction is assigned for error. It assumes that the city is under a duty to the landowner to “ define its future policy ” in regard to the opening of streets o\’er his suburban lands, and to indicate with certainty the grades on Avhich each one will be opened Avhen the time for opening it arrives. If no such duty exists, then the failure of the city to furnish the information required will afford no cause of complaint, and will justify no assessment of damages against it. No statute or rule of public policy has been brought to our attention that binds such a duty upon the city. We are aAvare of none. If for any purpose the city should undertake to render such a service to real estate owners it would not be bound to continue it, nor would it be bound by its own action in that regard. Councils cannot bind their successors, nor can they bind themselves by a declaration of “future policy.” Such a pronunciamiento is not within the powers or duties of a municipal government and it would confer no rights and impose no obligations. Resolutions and ordinances directing the opening and grading of streets no matter how clearly or strongly they show the purpose of the city at the date of their passage, may be modified or repealed to-morrow, and property [5] owners affected thereby may be greatly disappointed and the value of their property affected, but such loss of a prospective gain is not a cause of action. It is damnum absque injuria'. But if the ordinance remains unrepealed and is at the proper time carried into execution by the actual opening and grading of the street the injured landowner has then a cause of action for the actual injury sustained. The city must paj* for the land it takes, and the injury it does, in the opening of streets. It is not liable for what it intends or threatens to do; much less for what a landowner may conjecture the consequences of possible action in the future. Some people speak'of having suffered great losses when they really mean that they have missed the opportunity to make great gains. If they had known what was to happen, or if they could have foreseen the “future policy” of some person, corporation, or government on whose action the value of some commodity was to depend, they could have made the proper purchase or sale at the proper time to have realized a substantial advance. That is really the complaint of the plaintiff. He does not quite know when or how the city will open streets across his land. If he did he would know better how to deal with the property. But because “ of the uncertainty of the action ” of the city he cannot deal with it to the same advantage as he could do if the “ future policy ” of the street department so far as it affects his land was known to him now. The city cannot foresee the course of future developments any better than the plaintiff. It is her duty to open streets when they are needed to accommodate the public, and not till then. She must fix the grade when the time comes to open the streets, and she will then be liable for the injury actually sustained by the landowner. For the purpose of determining the amount of this injury each street stands by itself and must be separately considered. If the city at some future time shall open streets over the plaintiff’s lands, and the grade adopted for one or more of them shall affect the plaintiff injuriously, he will then be entitled to recover the damages he may suffer by reason of the opening or grading of each. But until then, non constat, that any street will be open.ed or any injury be done. The first and third assignments of error are sustained. The second is not sufficiently definite or intelligible to enable us to understand its purpose. The judgment is reversed and venire facias de novo awarded.