County of Chester v. Brower , 117 Pa. 647 ( 1888 )

Opinion,

Mr. Justice Paxson:

There was no taking of the property of the plaintiff below by the county of Chester, for the purpose of constructing the bridge on Gay street over the French creek, in the borough of Phcenix ville. The claim was for consequential damages caused by the erection of the abutments of the bridge some fourteen feet above the grade of the street in front of the plaintiff’s house. It follows that under the law as it stood at and prior to the adoption of the constitution he would have been without remedy: Struthers v. Dunkirk R. Co., 87 Pa. 282, and cases there cited. The constitution of 1874 made a radical change in the law as regards consequential injuries. Section 8 of article XVI. of that instrument declares that: “ 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, which compensation shall be paid or secured before such taking, injury or destruction.”

The jury have found that the construction of the approaches to the bridge was an injury to the plaintiff’s property; hence if the county of Chester is a corporation within the meaning of said section of the constitution, the liability for such injury necessarily follows. It is true a county is not in a strict technical sense a municipal corporation. It is a public corporation erected by the state for political purposes. One of its chief objects is the furtherance of the general policy of the state at large, especially in the due administration of justice, the preservation of the public peace, etc. It lacks powers of legislation, which in some form and to some extent are always possessed by municipal corporations. A county is a public, as distinguished from a private corporation, and while it aids in the enforcement of the policy of the state, it regulates to some extent the local affairs of the people within its borders. It is sometimes called a quasi municipal corporation. In any event it is a corporation; it has its common or corporate seal; it acts through its duly constituted officers, and it may sue and be sued. The clause in the constitution above recited is very broad in its terms. The framers of that instrument were seeking to redress what this court has repeatedly declared to be a great hardship, and which was regarded by many persons as a great wrong, viz.: the exemption of corporations from consequential damages where they injured private property without an actual taking thereof in the erection and construction of their works. The convention had before it the case of O’Connor v. The City of Pittsburgh, 18 Pa. 187, in which a valuable property in the city of Pittsburgh was seriously injured by the change of grade of a street. This court held that as the law then stood no relief could be afforded. How reluctantly we did so may be gathered from the language of Chief Justice Gibson in delivering the opinion of the court. He isaid: “We have had this cause re-argued in order to discover, if possible, some way to relieve the plaintiff consistently with law, but I grieve to say we have discovered none.” When, therefore, the convention took in hand the redress of this grievance they did it thoroughly. They said practically, that hereafter neither corporations nor individuals in Pennsylvania clothed with the power of eminent domain, should injure private property, without making compensation therefor, by “ the construction or enlargement of their works, highways or improvements,” whether any portion of such private property was actually taken or not. The language of the constitution is to be construed liberally so as to carry out and not defeat the purpose for which it was adopted: Leonard v. Com., 112 Pa. 607. The section referred to was intended to embrace, and the language thereof is broad enough to embrace every corporation and individual in the state clothed with the power of taking private property for public use. It is true counties -do not possess this power in its general or enlarged sense ; yet it is equally clear that they do possess it to a limited extent in the matter of opening ,roads and constructing bridges. We need not elaborate so plain a proposition.

We see no difficulty as to the form of action. The legislature has not provided any remedy to enforce the constitutional provision, so far as counties are concerned. But the constitution confers a right upon the citizen to recover consequential damages in certain cases, and he cannot be deprived of that right by the neglect or omission of the legislature. When a right exists and no adequate remedy is provided, it may be enforced by an action on the case: Penn. R. Co. v. Duncan, 111 Pa. 352.

Judgment affirmed.