Susanna Root's Case , 1875 Pa. LEXIS 47 ( 1875 )

Chief Justice Agnew

delivered the opinion of the court,

In Washington Avenue, 19 P. F. Smith 362-3, it is shown that the right of private property is clearly protected by the Bill of Rights. While the power of just taxation is unbounded, yet that of eminent domain is expressly limited by the right of the owner of the property to a just compensation. It follows that the right of compensation is not to be frittered away by a mere inference or by unfriendly interpretation. Compensation is not necessarily to be in money, and maybe awarded in particular benefits received by the owner. But it is equally well settled that those general benefits, in which all others participate equally with the owner, are not jtist compensation. The question in this case is the proper interpretation of -the Act of June 15th 1871, entitled “ An act relating to the assessment of damages for the appropriation of land for public use.” The interpretation must be made in view of the principles just stated as to the constitutional right of compensation.

By the first section of the Park Act of 26th March 1867, the title and ownership of the lands taken for the park are expressly vested in the city of Philadelphia, and compensation was provided for in the 3d section. Under this law and its supplements compensation was made in benefits; a rule properly applied to cases where the owner, as in the case of highways, retained his property subject to the public easement. But when, as here, the title of the owner was extinguished and transferred to the public, justice seemed to require a different rule, and this the Act of 1871 supplied. Hence, the act declared that “ it shall not be lawful to assess, apportion, or charge the whole or any portion of the damage done to, or the value of the land so appropriated, to among or against the other property adjoining, or in the vicinity of the land so appropriated, nor the owners thereof; and all acts, or parts of acts, inconsistent herewith are hereby repealed.”

It is to be noticed first, that this law is general and applies to all cases except appropriations of land for roads, streets and highways. It makes no exceptions of citizens of any class or in any circumstances — all alike are entitled to its benefits. Then its language is the whole or on any portion of the damages done to, or value of the land so appropriated. It therefore applies as well to damages as to value. Then neither damage nor value is to be assessed^ apportioned or charged to, among, or against the other property adjoining, or in the vicinity of the appropriated land. In no form whatever, therefore, shall the adjoining land contribute to pay the damages or the value of the land taken. It is not to be by assessment, apportionment or charge, and it is not to be to, among or against it. Neither adjoining property nor land in the vicinity shall contribute. What more ? “ Nor the owners thereof.” Then neither the land adjoining nor the owners of such land shall bear the burthen of the damage in the value of the appropriated land. There is no exception to this. The act does not say, except where the owner of the adjoining land is also the owner of the land taken. To crown all, there shall be no inferential exception, for it is said, “ and all acts, or parts of acts, inconsistent herewith are hereby repealed.” Hence, all those laws which before had allowed damage or value to be extinguished by benefits are gone as to these adjoining lands; for these charge the owner with the benefits his retained land has received, and this is flatly inconsistent with the provision that the adjoining lands and their owners shall not be assessed, apportioned or charged with contribution. There can bo no inference, therefore, from these repealed laws, that lands outside, or the owners of outside lands, shall pay the damages done to, or the value of the appropriated inside land.

Then how does the case stand ? Mrs. Root’s land inside is wholly taken — it is gone entirely from her. She has, and can have, no benefits arising from it. The benefits, therefore, necessarily are such as belong to the outside land. It is a portion of the value of the outside land which is made to satisfy and pay the entire value of the land taken. As the owner of the outside land therefore she is compelled to submit to an assessment against her outside land to extinguish the compensation for her inside land. What is this but to set-off the outside value against the inside value. This being the undeniable fact, it is in the very teeth of the statute, which says it shall not be lawful to assess, apportion or charge the whole or any portion of the damage done to, or the value of the land so appropriated to, among or against the other property adjoining, or in the vicinity of the land appropriated, nor the owners thereof, and all acts and parts of acts inconsistent herewith are hereby repealed.

What has been said shows that the answer made that she is the owner of the land appropriated, and of the adjoining land also, and that value of the latter is increased by the park improvement, is without force, for she is not the subject of an exception in the law, and no exception can be made by judicial inference. It is also contrary to justice as well as the letter and intent of the act. As an owner of adjoining lands she partakes of no special benefits, that all the owners of adjoining land or lands in the vicinity do not share in. They derive precisely the same benefits in the rise of property in value that she obtains. If her outside land belonged to another its rise in value would be precisely the same, and yet would not be liable to contribute to pay her compensation for the land appropriated. Is it not evident that getting nothing from the inside land, her entire compensation has been taken out of her adjoining land? and that the rise in value of her adjoining land is as much protected by the act as the rise in value of any other person’s adjoining landj? This is the very thing forbidden by the act. How then does the accident that the two portions were formerly one, change her position, and make her -liable as an owner, when other owners are exempt, and the act makes no exception, and allows of none by a repeal of the laws which would have allowed it ? Nothing short of a judicial law can accomplish such a result, and this merely because as outside owner she is benefited precisely as all other outside owners are by the rise of adjoining lands in value. It is simply discrimination in face of the letter and purpose of the act, which is founded on the just principle that when the property is taken wholly, it is not to be paid for out of those common benefits which all alike enjoy in similar circumstances.

We think the court below was misled by the state of the law previous to the passage of the Act of 1871, and had not noticed the effect of the repealing clause in the last line, which prevents a judicial exception founded upon them.

The decree of the Court of Quarter Sessions of the Peace, dismissing the exceptions and confirming the report, is reversed, and the report of the jury is set aside upon the third, fourth and seventh exceptions, and it is ordered, that a new view and appraisement be awarded; and the record is directed to be remitted to the new Court of Common Pleas, sitting as a Court of Quarter Sessions, there to be proceeded in and finally determined according to law.

Mr. Justice'Mercur dissented.