Lafean v. York County

Opinion by Rice, P. J., In August, 1892, the plaintiffs and others petitioned the court of quarter sessions for the appointment of viewers to report upon the location of a bridge across Codorus creek at College avenue in the city of York. Viewers were appointed, who reported in favor of the bridge. In the same year the matter was laid before the grand jury who reported that the proposed bridge should be built by the county. Their report was approved by the court. On June 11, 1896, the county commissioners filed in court their recommendation that the bridge be entered on the record as a county bridge, and in September of that year they contracted for the erection of the abutments and superstructure. This contract contemplated the erection of a bridge at the street grade, but in the same month the county commissioners decided to change the plan from a grade bridge to a bridge spanning not only the creek but the tracks of the Northern Central Railway. This was opposed by the plaintiffs without avail, and the county commissioners entered into a new contract, pursuant to which the bridge was built and completed in 1897 according to the new plan. The plaintiffs’ factory fronts on College avenue, and lies between the creek and the tracks of the Northern Central Railway. The elevated structure in the street, made necessary by the change of plan, is about twenty-five feet high and occupies the whole width of the street in front of the plaintiffs’ build [578] ing excepting about fifteen feet. The open space is on the plaintiffs’ side of the street. The structure is supported by a stone pier near the creek, and bj, iron pillars or stone at intervals eastward from the pier. Some of these supports are in front of the plaintiffs’ property, and one pillar or pier is about twenty feet from their front door. The plaintiffs claim that this structure interferes with ingress to and egress from their premises, and also with their light and air, and in July, 1899, upon their petition, viewers were appointed under the Act of May 16, 1891, P. L. 75, to assess their damages. In September following the county commissioners obtained a rule to show cause why the appointment of viewers should not be set aside and the proceedings dismissed, alleging as the sole reason that a county is not a municipal corporation within tide meaning of the act of 1891, and therefore the act does not provide a remedy for the assessment and recovery of damages caused by the erection of county bridges. Upon argument they convinced the court of the correctness of their position, and accordingly the rule was made absolute. Thereupon the plaintiffs brought an action of trespass, the defendant pleaded the general issue, and after a trial which resulted in a verdict and judgment for the plaintiffs the defendant took this appeal. It is urged that an action of trespass will not lie in such a case because, in the first place, the local Act of February 17, 1860, P. L. 61, “ relating to roads and bridges in York county,” and the general Act of June 13, 1874, P. L. 283, entitled “An act for further regulation of appeals from assessment of damages to owners of property taken for public use,” provide an adequate and exclusive remedy. The 3d section of the act of 1860 provides, that if the viewers “shall decide in favor of locating a public road or bridge, as the case may be, it is hereby made their duty to obtain from the persons through whose lands the road may pass releases for any damages that may arise to them in opening the same; and in every case where the owner or owners of such land refuse to release their claim to damages it shall be the duty of the said viewers to assess the same, taking into view the advantages as well as disadvantages arising from said location.” It is thus seen that the act of 1860 provides only for the assessment of damages accruing [579] to persons “ through whose lands the road may pass.” The right of a person, whose land is not taken, to recover damagefor consequential injuries caused by the erection of a. county bridge is not recognized in the act, as it was not in the constitution in force at the date of its enactment. Prior to thadoption of the constitution of 1874, a person injured in'the manner complained of by the plaintiffs was without remedy. But section 8, article 16 of that instrument gave the right to; recover damages for such an injury, and until the legislature provided a remedy for the enforcement of the right, a person thus injured was entitled to maintain a common-law action, which, prior to the procedure act of 1887, would have been an action on the case and since that act was an action of trespass. This was decided in Chester County v. Brower, 117 Pa. 647, a case which, so far as the nature of the injury is concerned, is' parallel with the present case in every essential particular. See also Delaware County’s Appeal, 119 Pa. 159, Miller v. Allentown & Bethlehem Rapid Transit Co., 181 Pa. 622, and Freeland v. Penna. R. R. Co., 197 Pa. 529, 541. It is urged, in the second place, that if the plaintiffs’ damages were not assessable under the York county act of 1860, they should have been ascertained by viewers appointed under the Act of May 16, 1891, P. L. 75. But that act gives the party injured an appeal from the report of viewers and a trial by jury as matter of right. If a report of viewers had been made and the plaintiffs had appealed, the issue would have been the same and it would have been tried in the same court and in the same manner as was this action. When the plaintiffs attempted to-pursue the mode prescribed by the act of 1891, the county successfully objected that it was not proper, and thereby compelled the plaintiffs to bring their case directly before the court and jury without a preliminary report of viewers. The present objection goes not to the jurisdiction of the court to try the issue but to the mode by which it was brought before the court, and for that the defendant is responsible. No harm has resulted to the county from the plaintiffs’ acquiescence in the ruling made at its instance, and no rule of law or principle of justice requires that they should be put out of court after a fair trial on the merits, because the county now sees fit to take a contrary position. The cases of Ogden v. Philadelphia, 148 Pa. 430 [580] and Wilson v. Scranton, 141 Pa. 621, while not decisive of the question presented here, are pertinent to the question of jurisdiction. Taking this view of the case, it is unnecessary to adopt the conclusion of the court below as to the applicability. of the act of 1891, or to discuss that question. The sixth, eighth, ninth and tenth assignments are overruled. The argument in support of the fourth and fifth assignments of error is based on the erroneous assumption that the inconvenience resulting to the plaintiffs from the erection of the elevated structure are only such as are common to all citizens using the street. The evidence introduced by them tended to show that the access to their premises is impaired and the light interfered with. This peculiar injury differs not merely in degree but in kind from that sustained by them in common with the general public. It is precisely the same kind of injury as that for which recovery was had in Chester County v. Brower, supra. As affecting the right of recovery no distinction can be drawn between a partial and a total deprivation of access ; “ the impairment of the right is a legal injury differing in degree only from its total destruction : ” In re Melon Street, 182 Pa. 397. It is unnecessary to cite other cases to show that the defendant’s second and third points were properly refused. These assignments are overruled. The approach to a bridge is part of the highway; hence it was not improper to speak of this structure as occasioning an “ elevation of the grade of the highway over College avenue.” In properly estimating the damages to the plaintiffs’ property, we do not see how the jury could avoid taking this into consideration, especially in view of that part of the plaintiffs’ claim which was based on the fact that the structure, by reason of its height, partially excludes the light from their premises. Therefore, the first assignment is overruled. The plaintiffs’ sixth point (third assignment), while accurate as a general proposition, would have been inadequate if its affirmance had not been accompanied by more specific instructions as to the measure of damages. But this criticism cannot justly be made when the point is read in connection with the answers to the defendants’ first and fourth points, the plaintiffs’ fourth point and the instructions contained in the general charge. The jury could not have failed to understand that' [581] the true measure of damages was the difference in market value of the premises immediately before and immediately after the erection of the bridge as affected by its erection only. Notwithstanding the very severe criticism of the verdict by the appellants’ counsel, we are convinced that if the jury did not apply that rule, it was not because the instructions of the court upon the subject were inadequate or misleading. Nor is the verdict so clearly against the weight of the evidence as to warrant us in concluding that the jury perversely disregarded the instructions of the court. The second and third assignments are overruled. As the plaintiff’s statement is not printed in the appellants’ paper-book, as required by our rules, we do not feel called upon to discuss the seventh assignment. It is dismissed. The only other assignment which requires particular notice is the eleventh, in which complaint is made that the court permitted the jury to be taken to view the locus in quo. Conceding that the Act of May 21,1895, P. L. 89, does not apply, and that the plaintiffs could not have demanded this as a matter of right, yet it must also be conceded that a view would aid the jury in understanding the testimony, and could not be prejudicial to either party. The application was an appeal to the sound discretion of the trial court and there is nothing' whatever in the record which would warrant us in saying that the discretion was improperly exercised. See 10 P. & L. Dig. of Dec. 17119 and 17121; also, Frazee v. Manufacturers Light & Heat Co., ante, p. 420. The judgment is affirmed.