Hendrick's Appeal , 1883 Pa. LEXIS 168 ( 1883 )

Mr. Justice Ghees

delivered the opinion of the court,

It is due to the learned judge of the court below to say that at the time his opinion was filed the 15th volume of Norris’ Reports had not been published, and the case of Borough of New Brighton v. United Presbyterian Church, p. 331, was not called to his attention. In that case it is expressly ruled that 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. As the decision of the court below was based entirely upon the proposition that there had been no grade fixed, prior to that which was established in 1881, and occasioned the injury eo2nplained of, it is fair to presume that had the above cited case been known to the court, the decision would have been the other way. However that may be, while that case remains law (and wre have no disposition to overrule it), a change from a natural gi’ade has the same effect as a change from a grade previously established by the proper authorities. Therefore, when an owner has sustained injury by such change he may recover damages therefor, with the same effect as though the change had been from a previously established gi’ade. Á21 argument is now made that the borough of Norristown is not invested with the right of taking private property for public use, and hence is not subject to the operation of the 8th section of article 16 of the Constitution. The Act of March 26th 1853, P. L. 228, provides a somewhat- complicated machinery by which the highways of the borough are to be laid out and opened, but it declares that when the proper surveys have been made and. approved by the court,“ all said streets, roads, lanes and alleys so approved, shall bo forever deemed, adjudged and taken to be public highways, and the survey so returned and recorded shall be and remain unalterable.” The Act further provides that streets may be opened by order of the quarter sessions, on the petition of not less than seven citizens, and for the payment of damages occasioned thereby. It would be a very strained and narrow construction of the Constitution to hold that, because the power is not given to the municipal corporation directly, and of its own motion alone, to seize and appropriate the land of the citizen for its roads and streets, it is therefore not bound to make compensation, although the appropriation may be 2nade through the courts and by the maehinei’y pi’ovided. When the streets are opened, the citizens’ hind is appropriated to public use as a part of the highways of the borough, and by proper proceedings in the courts. If the authority of the courts must be invoked in order to complete the act of appropriation, and for that reason the right to compensation is to be taken away, the constitutional provision which forbids the taking or injury without compensation is practically nullified. The argument reaches as well to the taking as to the injuring. If it is unavailing for the one it is equally unavailing for the other. We are clearly of opinion it is not effective for either. In actual fact the land taken for streets is taken for the use of the borough within whose territory they are opened. The legal proceedings necessary to complete the taking are only the means, the machinery by which it is to be accomplished. In every kind of taking, whether by the direct act of the corporation exercising the right, or by force of preliminary orders of the courts, same kind of legal proceeding is necessary, in the absence of consent to perfect the title of the taker. Whether these proceedings relate simply to the assessment of damages, or whether in addition to that they include a previous judicial sanction, is immaterial to the present consideration. The right to compensation remains fortified by a protection in the organic law which cannot be overthrown. If there were really any distinction in this case between compensation for taking and for injuring, it is abrogated by the express language of the Act of ninth May 1871, P. L. 639, which directs that damages shall be assessedto the owners of lands injured,” by the acts authorized by the first section. Moreover, by the terms of that Act the boroughs of Montgomery county directly participate in the laying out, opening, widening, vacating and changing of any of their streets, roads or alleys. The jurisdiction of the court is only to be exercised with the consent of the boroughs. Eor the reasons stated we are of opinion that the learned court below was in error in sustaining the exceptions to the report of viewers assessing damages. They should have been dismissed and the report confirmed.

Decree reversed and procedendo awarded at the cost of the appellee.