Kough v. Pennsylvania Railroad

Opinion by Me. Justice Fell, The appellant’s contention that a recovery against it was allowed for a cause of action.not declared on must be sustained. The substance of the allegations in the declaration is that the defendant, without having tendered a bond as required by law, entered by force upon and appropriated to its use a strip of the plaintiff’s land adjoining its right of way and placed an additional track thereon; that the movement of trains on this track made his house less desirable as a residence because of [178] vibration, noise and dirt; that the defendant destroyed shade trees and threw stones and earth on a part of his land not appropriated. The proofs at the trial were that in the borough of Mount Union the defendant’s road was eight feet below the grade of a public street on which the plaintiff’s property was situated. There was a sloping bank six and a half feet in width on the north side of the street between the level portion thereof and the defendant’s roadbed. By authority of the borough council, granted by ordinance, the defendant removed the bank, built a retaining wall, and occupied six and a half feet of the street at the grade of its tracks on the side opposite the plaintiff’s property. The grade of the part of the street that was traveled was not changed, nor was any part of the plaintiff’s land taken. The claim for damages for the inj ury to shad e trees was not sustained by proof and was withdrawn from the jury by the court; and the throwing of dirt and stones complained of was not on the private property of the plaintiff, but on the surface of the public street during the progress of the work. The only ground for the recovery of damages that the testimony tended in any way to establish was interference with the means of access to the plaintiff’s property. This was not alleged as a ground for recovery, nor was it a natural result of the grounds laid, and its submission to the jury was error. When testimony on this subject was first objected to, the plaintiff was proceeding on the theory that a street had not been laid out in front of his property and that a part of his land in actual occupation had been taken. The objection was properly overruled because, if a part were taken, the testimony was admissible to show the injury to the remaining land. But it was afterwards shown beyond controversy and admitted that a public street had been established by dedication by a previous owner and by adoption by the borough, and the question of the right to recover for interference with the means of access was raised by a request for charge. The change of front by the plaintiff during the trial no doubt led to the error, but it cannot be said that the defendant acquiesced in the submission of a question not involved in the issue. The plaintiff may have a cause of action for the impairment of a right incident to his property, under the principles stated in Jones v. [179] Erie, etc., Railroad Co., 151 Pa. 30, and the cases there cited, but it is a cause differing from that laid in the declaration. It is not enough that the evidence shows a cause of action; it must show the cause alleged. The judgment is reversed.