Jones v. Borough of Bangor

Opinion, Me. Justice McCollum : In 1887, Pennsylvania Avenue, a public street in the borough of Bangor, was graded by direction and at the cost of the municipality “ from North Fifth street to the borough line.” David J. Jones was then the owner of eight lots abutting on the street, one being on the south and seven on the north side of it. In front of these lots, the street was raised by the grading from four to seven feet, and Jones, complaining that his property was injured by it, brought this action. In 1874, John Lobb owned a tract of land, containing eighteen acres, which now includes the portion of Pennsylvania Avenue in controversy, and in that year he laid it out into building lots, with streets and alleys, a plot of which he recorded. On the first of April, 1874, he conveyed six of these lots lying on the south side of the street, marked on- the plot as “ Pennsylvania Avenue,” to Jacob and Samuel Stocker, and in 1878 he sold to Jones the small triangular strip of land between the north side of the street and the old road. This purchase by Jones, coupled with the vacation of the old road, changed the front of his property from ,the north side of the latter to the street as laid out and dedicated by Lobb in the recorded plot. Jones acquired title to his lot on the south side of the street by a conveyance from the Stockers in 1882, and it was o'ne of the six lots which they bought of Lobb in 1874. The borough of Bangor was incorporated in May, 1875, and two years thereafter it adopted a system of grades and streets which, it is alleged, included Pennsylvania Avenue. In the summer of 1878, this avenue was opened to public travel, and sufficient work was done upon it to render it barely passable ; but no effort was made to grade it in conformity with any established plan. It remained in this condition nine years, when a petition, signed by Jones and others, was presented to the borough council, requesting that it be graded. This recital comprehends all the facts essential to an intelli [647] gent consideration of the questions raised in the case. It is contended by the borough that as Lobb laid out the street, and dedicated it to public use, he and his vendees are precluded from claiming damages for an injury to their lots abutting thereon, caused by a change of grade; that the physical change of grade made in 1887 conformed to the grade established by the borough ordinance ten years before, and that the right of action for fhe damage caused by it, if there was any, belonged to the parties who owned the lots when the ordinance was adopted, and is barred by the statute of limitations; that the work done in 1878 to open the street and make it “barely passable ” was the beginning, and that done in 1887 was the completion of the grade adopted by the borough in 1877, and a right of action for the damages arising therefrom accrued when the work was commenced, and cannot be split; and, finally, that Jones is estopped from claiming damages by his understanding with Lobb when he purchased the triangular piece, and by his signature to the petition for grading the street. In considering these defences, it must be remembered that the street was dedicated, and many lots abutting on it were sold by Lobb a year before the borough was incorporated. The dedication was independent of, and had no connection with the grade subsequently established. It was too late, after recording the plot and selling lots in conformity with it, to modify or annex • conditions to the dedication. Assuming that the act of dedication included a waiver of any claim for damages for the opening of the street, it by no means follows that the damages provided for by the new constitution and the act of May 24, 1878, are released by it. Injuries to abutting property, caused by a change of grade, an alteration or enlargement of the street, do not necessarily result from the opening of it to public travel. It is true that in a proceeding to recover damages caused by the opening and grading of a street, the party must submit his whole claim, embracing consequential as well as direct injuries; but, “ where the grading occurs as a separate act of the public authorities, and so long after the opening of the street that the assessment of the damages at the time of the appropriation cannot include those resulting from the grading, the latter may be ascertained by a second view: ” Pusey v. Allegheny City, 98 Pa. 522. We think it is clear [648] that a dedication in 1874 cannot operate as a release of damages caused by a physical change of grade in 1887, in accordance with a grade established by ordinance in 1877: New Brighton Bor. v. U. P. Church, 96 Pa. 331; New Brighton Bor. v. Piersol, 107 Pa. 280. The right of action for damages caused by changing the grade of a street accrues when the work is done on the ground. It is the physical, not the paper, change which confers it: Freemansburg Bor. v. Rodgers, 7 Cent. R. 828. In the present case, the right of action accrued in 1887, when the first and only work was done for the purpose of bringing Pennsylvania Avenue to the grade established by the borough ordinance. This work was a separate and independent act of the corporate authorities, entirely apart and distinct in time and purpose from that done in opening the street in 1878. It follows that the latter can have no influence on the right of action for damages caused by the former. In the deed to Jones of the triangular piece of land, there was no provision in relation to the grading of the street, or the damages arising therefrom. If. he and his vendor knew that a grade was established by the borough in 1877, and it was understood by them that the street would eventually be made to conform to it, such knowledge and understanding would not affect the borough’s liability, nor defeat the present claim. The consent which relieves a borough from its constitutional obligation to make just compensation to the owner for an injury to his property, means something more than non-resistance. It should be given to the municipality by the party interested, and it should embrace, in express terms or by necessary implication, a release of the right to damages. We cannot assent to the proposition that a lotowner, who joins in a request to the borough authorities to grade a street, is estopped thereby from claiming compensation for an injury to his property by the grading. The cases relied on by the appellant to support his claim are not in point. The distinction between them and the case at bar is so plain that a discussion of it is unnecessary. In the view we have taken of the case, there was no error committed in the rejection of the offers of evidence or in the instructions to the jury. Judgment affirmed.