Spencer v. Carlisle Borough

Opinion by Trexler, J., The plaintiff claimed the fee in the land to the centre line of a private alley through which the Borough of Car-lisle, without filing a bond, laid a sewer, the sewer being [515] on her portion of the alley. She brought this action of trespass to recover damages. The damages, if any, are permanent. The test of the amount of her injury is the difference between the value of her property before and after the injury. The depreciation of the value of the land is the proper measure of damages: Wagner v. Purity Water Co., 241 Pa. 328 (334) ; Rider v. York Haven W. & P. Co., 251 Pa. 18. There were two witnesses who testified as to the amount of her damages. The plaintiff herself stated that she fixed her damages at $500.00 but admitted the only basis for her judgment was “an inward conviction that the property was damaged and that was practically all she had to support her estimate.” The other witness testified to the same amount but had the wrong basis for his conclusion. He limited the damages to the corner property forming part of plaintiff’s land, but stated that the whole property would bring as much now as before the injury. He had no right to put his estimate on a selected portion: Real Estate Invest Co.’s Assigned Est., 215 Pa. 50. His estimate on the whole property before the injury was $4,000.00 to $5,000.00 and after the injury he said it would bring more than that amount. No wonder that with such testimony the court expressed a doubt as to its value and stated, “The testimony of these two witnesses taken as a whole was not entitled to much weight in fixing the amount of the alleged depreciation, indeed if it showed satisfactorily any to have been suffered.” There was no evidence in the case to sustain a verdict in favor of the plaintiff, except for nominal damages. There were no facts in the case to which the jury could apply the rule laid down by the court “that the damages were the difference in value of the property prior to the installation of the sewer and what it would bring in the market at the present time.” The court affirmed the point submitted by the plaintiff that “If the jury find that the defendant installed said sewer line wilfully, without consent, and without proper inquiry, the damages may be exemplary or punitive.” [516] When torts are committed wilfully, maliciously or so negligently as to indicate a wanton disregard for the rights of others, punitive damages may be awarded: Pittsburgh, Etc., Ry. Co. v. Lyon, 123 Pa. 140. Such damages are allowed upon the theory that the offender has wilfully, maliciously or wantonly disregarded the rights of the complaining party. Such conduct will not be presumed and there must be evidence from which such inference may be reasonably drawn: Rider v. York Haven W. & P. Co., 251 Pa. 18. There were no facts in this case showing that the action on the part of the borough was such us called for punitive damages. The borough secured a release from the person having a right of way over the alley. Evidently the officers of the borough thought it sufficient to deal with the party whom they assumed had possession of the property. There is certainly an entire absence of any high handed proceeding in the matter and no fact is disclosed from which an inference of malice might be drawn. If generally, as stated above, there is no presumption of such conduct this rule must, with greater force, apply to the officers of the borough who are charged with the management of public affairs and whose actions are intended for the good of the community. We think both as to the questions of compensatory damages and punitive damages, the court was wrong in submitting the question to the jury. The plaintiff claims title to the centre of the alley as an abutter. The deed to her ancestor calls for the alley as one of the boundaries of the property. The appellant contends that the call of the deed determined the boundary of her estate and that she had no title to the fee in the alley. The court decided that “the alley is an open one.” As this case goes back for retrial, we call attention to the fact that in a conveyance designating a street as a boundary, it is always open to proof to show that the street was unopened and unused and therefore the grantor’s right was limited to the edge of the side of the [517] street. The conditions on the ground at the time of the conveyance must be considered in order to ascertain the real “intention of the grantor. If there arises- any question as to the facts as to whether the alley was open or not at the time of the conveyance, the matter must be left to the jury: Opinion of Kephart, J., in Rhoads v. Walter, 61 Pa. Superior Ct. 43. See Fitzell v. Philadelphia, 211 Pa. 1. The judgment is reversed and a venire facias de novo awarded.