Borough of New Brighton v. United Presbyterian Church , 96 Pa. 331 ( 1880 )

Mr. Justice Mercur.

delivered the opinion of the court, November 26th 1880.

It must be conceded that prior to the Constitution of 1874, the defendant in error would have been remediless ; but art. 16, sect. 8, declares, “ Municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by the'construction or enlargement of their works, highways or improvements.” This section thus gives compensation for property injured in the construction or enlargement of highways. The first section o’f the Act of May 24th 1878, Pamph. L. 129, gives effect to the Constitution and defines the liabilities of boroughs within this Commonwealth. It provides “ where the proper authorities of any borough have, or may hereafter change the grade or lines of any street or alley, or in any way alter or enlarge the same, thereby causing damage to the owner or owners of property abutting thereon, without the consent of such owner, or in case they fail to agree with the owners for the proper compensation for the damages so done,” the Court of Common Pleas of the proper county, on application, shall appoint viewers to assess the damages. Under that section damages in this case were assessed. On appeal therefrom trial by jury was -waived and the case submitted to the court, and from the finding thereof and judgment.thereon this writ of error was taken.

The lot of the defendants does abut on a street, and by reason of a change of the grade thereof by the authorities of the borough the damages have been sustained. Why shall not the owner of the lot be compensated ? It is claimed by the plaintiff in error that, inasmuch as the proprietor of that part of the borough laid it out into lots and streets, and the municipality had not before fixed the grade of this street, it is not liable for damages resulting from grading it the first time. Why not ? The proprietor dedicated the street to public use as the grade then existed. The defendant in error so accepted it, and erected a church edifice on the lot abutting thereon. Whether or when the authorities would change the grade was a matter of conjecture. A change from the natural grade is a change of grade just as clearly as if changed from a grade previously made by the authorities. It is presumed to have been made for the public benefit; but, as is found, to the injury of private property. There was no provision by which the authorities could have been compelled to establish the grade of a street thus dedicated before the municipality had accepted it or assumed some authority over it. When the borough accepted- it she took it as it then was, in width, line and grade. This statute giving compensation is remedial. It gives damages where before none could be recovered. It should receive a liberal construction to effect its object. The learned judge was entirely right in holding the borough liable.

Judgment affirmed.

Justice Paxson dissented.