Opening of Negley Avenue , 146 Pa. 456 ( 1892 )

Opinion,

Mr. Justice Williams :

The plaintiff is the owner of several acres of land in what was a few years ago a rural portion of the city of Pittsburgh. This land is crossed by a street laid out many years ago, on what was then known as the East Liberty plan, which has not been opened. The possession of the plaintiff has never been disturbed by the city, and the street known as Wayne street exists only on paper. The progress of improvements has brought the neighborhood of the plaintiff’s land into demand for building purposes, and an avenue known as Negley Avenue has been so laid out and opened as to give the plaintiff a front of five hundred and fifty feet thereon.

This case was begun by a proceeding for the purpose of assessing the damages, if any, sustained by the plaintiff in consequence of the opening of Negley Avenue. She asked that these should be assessed as if Wayne street had been actually opened on its recorded site, alleging that if opened it would cross her land at such an angle that, with Negley Avenue opened, it would seriously affect the value of her lots. The counsel for the city replied that Wayne street had been vacated since Negley Avenue was opened, and gave evidence to show that fact. The plaintiff’s counsel then asked the court to instruct the jury that her damages should be assessed as of the time when the avenue was actually opened, and that circumstances occurring since should not^be considered by them in settling the amount. This, the court declined to do, but, on the other hand, instructed them that they should assess the damages, “ as though it (Wayne street) was vacated contemporaneously with the laying out of that (Negley) street.” To make this perfectly plain, he proceeded to say: “ It must be taken, then, as though the street was vacated and did not exist, at the time the other (Negley) street was laid out; ” notwithstanding the admitted fact that it was not vacated, and that it did exist upon the maps as a street regularly laid out.

We think the proposition embodied in the point was correct, and the answer of the court was wrong, yet the result reached was exactly right. The learned judge might have told the jury that the plaintiff’s point was good law, but that it did not justify them in considering the effect upon her property of any unopened street. Damages are assessed upon the opening, not upon the laying out of streets. Negley Avenue was opened, and the question was, how has the opening of that thoroughfare affected the plaintiff? If Wayne street shall be opened at any time hereafter, a similar question will then be raised as to the effect of such opening. Then the jury will take into consideration the situation of Negley Avenue, its direction through the plaintiff’s land, * and how lots may be best laid out upon it. They will consider how the opening of Wayne street will affect these lots as to size and shape and desirability, and if it reduces their value, the damages will then be assessed. They ought not to be assessed twice. The court below was quite right, therefore, in confining the attention of the jury at this time to the effect of the opening of Negley Avenue, not because Wayne street had been vacated, but because it had not been opened. The direction was right; the reason was wrong. We ought not, therefore, to disturb this judgment, since, if the right reason had been given, the result would necessarily have been the same.

The judgment is affirmed.