Reap v. City of Scranton , 1898 Pa. Super. LEXIS 226 ( 1898 )

Per Curiam,

We are not prepared to say that the amendment of the declaration, even as described in the defendant’s brief of argument, was not allowable. When the object of an amendment is not to forsake the original cause of action but to adhere to it, and effect a recovery upon it, it is the duty of the court to permit it, in order that the whole merits of the case may be reached: Rodrigue v. Curcier, 15 S. & R. 81; City Iron Works v. Barber, 102 Pa. 156; Same v. Same, 118 Pa. 6; Bradford v. Downs, 126 Pa. 622. We ought not to be asked, however, to express a decided opinion upon the applicability of this familiar and well settled principle to the present case, because neither the original nor the amended statement has been printed.

There was no substantial error in admitting the testimony specified in the second assignment — its effect being restricted as indicated by the court in its ruling upon the motions to strike out, and in the instructions given to the jury.

It is not made clear by the offer itself what was the purpose of the evidence referred to in the third assignment. Judging of its purpose from the testimony of the witness which preceded and led up to the offer, it was properly rejected. Of course the defendants were entitled to show the width of the turnpike and its situation and condition as related to the plaintiff’s lot. All such testimony offered on either side was admitted. But the fact that there was a public necessity for the improvement was irrelevant; it did not affect the question of the plaintiff’s right to compensation for the injury sustained by him. This appears to have been the whole effect of the ruling, and thus understood it was not erroneous.

The principal question raised by the remaining assignments of error is as to the right of the plaintiff to maintain an action of trespass. It is urged that, having instituted proceedings to have his damages assessed as if there had been a taking in the exercise of the right of eminent domain, he waived the trespass. We fail to see how this position can be maintained, when, as the record of the trial of that case shows, he was practically put out of court upon the ground that there had been no such taking as entitled him to have the damages assessed in that way; and, therefore, that his remedy was by an action of trespass or an action of ejectment. This ruling, which virtually compelled the plaintiff to abandon those proceedings and to resort to his common-law remedy, was invited by the objections raised by the city, which, in view of the testimony that there had been an actual occupation of the plaintiff’s land, meant just what the court construed them to mean, or they did not mean anything. But surely the plaintiff was entitled to recover in one form or the other for the intrusion upon and injury to his land. If it was not appropriated in the exercise of the right of eminent domain, that is, if there was no precedent corporate action by ordinance to found a proceeding under the statute, then, in entering and building a wall upon it, without paying or tendering security for the damages or having them assessed, the defendants were trespassers and were liable as such: Brink v. Dunmore, 174 Pa. 395. Under the pleadings and evidence the judgment entered is a complete bar to any further recovery of damages on account of that taking (which it is to be observed was permanent in its nature), and under the circumstances the city cannot consistently complain that they ought to have been assessed in the former proceedings. If either party is to be regarded as bound by an election of remedies it is the city, and not the plaintiff. The precise question raised by the special facts of the case is clearly stated and correctly decided in the opinion of the learned president judge, discharging the rule for new trial, and nothing further need be added by us.

For reasons suggested on the argument we might have refused to consider the case at all; we have, however, overlooked the noncompliance with our rules, and, as far as the printed record has enabled us, have passed on the substantial questions in the case.

Judgment affirmed.