Brower v. City of Philadelphia

Opinion, Mr. Justice Williams: The lines of Chestnut street in Philadelphia had been settled for many years prior to 1870, and the occupancy by the [355] lotowners and by tlie public liad conformed to them. In that year, the legislature had increased the width of the street from fifty to fifty-five feet, by carrying the south line five feet over on the lotowners, with a proviso that the new line should not disturb existing buildings. Nothing was done by the city to carry this act into effect until 1884, when an ordinance was passed extending the width of Chestnut street to sixty feet, and directing the department of surveys to revise the city plan accordingly. This involved a removal of the north line of the street five feet over on the lotholders, and the adoption of the south line fixed by the act of 1870. The ordinance provided that after the new lines were thus established it should not be lawful for any person or builder “ to erect any new building, or rebuild or alter the front of any building now erected, without making it recede so as to conform ” to the new lines. In obedience to this ordinance, the department of surveys in March, 1885, revised the city plan by putting upon it the new lines of Chestnut street. When the act of 1870 became a law, Greble owned a lot on the south side of Chestnut street, between Seventeenth and Eighteenth streets, with a front of forty-four feet. It was then occupied as a marble-yard, at which the manufacture and sale of monuments, liead-stones, and other marble-work were carried on. The foot pavement extended up to the old line of the street, upon which there was an iron fence. On the other side of the fence, the lot was occupied as a marble-yard, and work ready for sale or removal was displayed along and near to the fence. This actual enclosure and occupancy existing when the act of 1870 was passed continued down to 1886, when a block was erected on the new street line covering the entire front. The city took possession of the strip of land thus surrendered, and in 1888 the owner presented the petition in this case, asking for an assessment of his damages. Proceedings were had, and a judgment recovered against the city for the value of the land, from which this appeal was taken, alleging that the plaintiffs’ demand is barred by the statute of limitations. The appellant contends that the act of 1870, ex proprio vigore, appropriated the plaintiffs’ land to the use of the public, and that the statute began to run against them at once, so that at the end of six years from the approval of the act of 1870 their action was barred. [356] There is a certain limited and popular sense in which it maybe said that the act did appropriate the plaintiffs’ land, but it was not a present or an actual appropriation. No means were provided for carrying the act into operation, and no time fixed within which the owner should retire from the possession. The legislature may be said to have designated or set apart the space between the old and new south lines for public use when the city should decide that it was necessary to take it, but the time when and the manner in which an actual appropriation should be made was left to the city to determine. For fourteen years the city did not determine, and the status remained undisturbed. The ordinance of 1884 did no more than to mark the new line on the city plan, and to require that buildings thereafter erected should conform to it. The power to enter upon the land, which the act of 1870 gave, was exercised so fast and so far as building was done, for then, and not until then, it became the duty of the owner to recede from the old to the new line, and surrender the intervening space to the city. When he did this his right of action accrued, and not before. It is urged that a contrary doctrine is held by Smedley v. Erwin, 51 Pa. 445, but we do not so understand that case. The act that came under consideration in Smedley v. Erwin ordained and fixed the limits of a street in Philadelphia, and directed the commissioner of highways to proceed and open it for public use within thirty days. The act was not permissive, but directory. It left nothing to the judgment or decision of the city councils or the courts, but laid a legislative injunction upon the commissioner to open a street for public use upon a location absolutely fixed in the act itself. This was an appropriation of the land covered by the street by the legislature, and the only thing left for the city or the courts to do was to ascertain its value, and make compensation to the owners. The act of 1870 lays no command on the.city or its officers. It fixes the south line of the street so as to settle any possible question about the legality of widening it, but it leaves everything else to the city. Whether the city shall avail itself of the new line, and, if so, when, to what extent, and in what manner, are questions over which the city has absolute control within the general limits fixed by law. These [357] questions liave been considered and determined by the city in the ordinance of 1884; and the plan adopted for widening Chesnut street is a wise and conservative one. Existing structures are not interfered with. New ones must go upon the new line. When the owner recedes in this manner from the old line, the city advances and enters into possession of the five feet additional, and then for the first time an actual appropriation takes place, and a right of action accrues. This gradual process is not oppressive to lot owners nor burdensome to the city. As was said by the present Chief Justice, in Chestnut St., 118 Pa. 593 : “ It will probably occupy nearly a hundred years. It is done gradually, and in a way to produce no great strain on the city treasury.” The city can be called upon to pay onty for its own act of appropriation, and not until such appropriation takes place: Hannum v. West Chester Bor., 63 Pa. 475; Volkmar St., 124 Pa. 320. The learned judge was right in his disposition of the reserved point, and The judgment is affirmed.