McGarrity v. Commonwealth , 311 Pa. 436 ( 1933 )

Mr. Justice MAXEY filed a dissenting opinion.

Argued January 16, 1933. Appellant's decedent, as tenant, leased property on North Front Street, Philadelphia, for one year with the privilege of renewing from year to year at his option. In building the Delaware River Bridge the Commission directed a change of grade in that street. The Commission's authority was conferred by the Act of July 9, 1919, P. L. 814. Plaintiff, who was engaged in a business requiring the use of trucks, averred in the court below that the new grade of the street, six feet below its former grade, prevented access to his premises; and as Front Street was the only means of access, the change destroyed the use of the premises. He was obliged to vacate his leasehold and remove his heavy machinery therefrom. The action to recover damages resulted in a verdict for defendant which the court below refused to disturb. This appeal followed.

While trial errors are alleged, it is not necessary to consider them, for section 3 of article III of the Constitution bars the way to plaintiff's recovery. This contention was not specifically raised at the trial and as judgment was for the Commonwealth, here as appellee, it is now raised by the Attorney General in his brief. The constitutional provision reads: "No bill, except general appropriation bills, shall be passed containing more than one subject, which shall beclearly expressed in its title." The part of the title to the Delaware River Bridge Act, which is pertinent to the question now under discussion, reads as follows: ". . . . . . providing for the acquiring, [taking,] and condemnation of the real estate for the site and approaches thereof [i e., of the bridge,] and making an appropriation for the purposes of this act." As the body of the act is sufficiently comprehensive to cover claims for the consequential damages which plaintiff sustained, the question is, does the title give sufficient notice of the new liability that is to be imposed on the Commonwealth.

Section 10 of article I of the Constitution reads: ". . . . . . nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured." This provision applies only to the taking of land or interests therein.

Damage that is merely consequential upon a change in grade of a street does not constitute a taking of property within the constitutional clause cited. Damages for such taking are a matter of legislative grace and not of right: Hoffer v. Reading Co., 287 Pa. 120; Monongahela Navigation Co. v. Coons, 6 W. S. 101; In re State Highway Route No. 72, 265 Pa. 369. When this grace is extended, it must clearly appear in the statute itself and notice of such a radical departure from the customary rule of law must be given in the title of the act.

In the Soldiers and Sailors Memorial Bridge Case, 308 Pa. 487, this court affirmed the action of the court below in setting aside the report of viewers allowing damages sustained by an abutting property owner by reason of the erection of the bridge, because the title of the act then in question gave no notice of the liability for consequential damages to be imposed on the Commonwealth. In that case the Act of July 18, 1919, P. L. 1049, provided for the erection of the memorial bridge in the City of Harrisburg. That part of its title pertinent to the question reads: ". . . . . . providing for acquiring any property necessary by eminent domain;. . . . . . and making an appropriation to carry out the provisions of this act."

The titles in neither of these bridge acts give any notice that liability for consequential damages or such damages as were sustained in these respective cases, was to be imposed on the Commonwealth.

We said in the Soldiers and Sailors Memorial Bridge case, supra, that "The title provides for taking property by eminent domain. This contemplates an actual or direct taking of property and for it damages are provided. Consequential damages arise when property is not actually taken or entered but an injury to it occurs as the natural result of an act lawfully done by another. . . . . . An abutting owner could not recover consequential damages for a change of grade before the Constitution of 1874: Struthers v. Dunkirk, etc., Ry. Co.,87 Pa. 282. The present Constitution makes this possible [Chester Co. v. Bower, 117 Pa. 647; Appeal of County of Delaware,119 Pa. 159]; but before the right may be exercised, the State must authorize it by some statute: Westmoreland C. C. Co. v. Pub. Ser. Com., 294 Pa. 451, 458, and authorities there cited. The owner is without remedy unless the legislature provides one. . . . . . Claims for consequential damages are not within the class of damages comprehended by a taking of property under eminent domain. . . . . . The title of the act shows no attempt to impose liability for such damage on the State;. . . . . . such damages were entirely omitted from the title."

A statute can not authorize the taking of private property for public use without just compensation; otherwise the act would be unconstitutional: Article I, section 10 of the Constitution, supra. The Constitution does not bar the enactment of a statute authorizing the taking of such property with compensation, and if, in the taking, consequential damages result, the statute may provide for just compensation to be made for such damages. If a statute does provide for compensation for consequential damages, the legislative intent so to do must be clearly set forth in the title of the act.

The reason for the rule is obvious. In addition to many others, the Commonwealth owns the highways of the State and constructs yearly thousands of miles of road. If it were to be liable for consequential damages, at times where acts so provide, in the thousands of instances where the grade of the road is changed through farm and other lands, the burden imposed on the Commonwealth would be enormous.

Reference is made to Phila. v. Com., 284 Pa. 225. But the title to this act was not there in question; if it had been it would have been immaterial, as the title covered the thing taken. There the City of Philadelphia owned piers 11 and 11 1/2, and riparian rights, the latter always described and known as property and so fundamentally different from the rights here claimed that no discussion of that difference is necessary. These piers and rights were taken; this was a taking of physical property, not the creation of mere consequential damage. Furthermore, the act expressly dealt with thesepiers. The references to this case, from different pages in the opinion, have no application to the point here at issue.

Judgment affirmed.