Frick v. Philadelphia , 1915 Pa. Super. LEXIS 183 ( 1915 )

Opinion by

Tbexler, J.,

Allegheny avenue was plotted on the plan of the City of Philadelphia in 1839 as a street of the width of 150 feet. It was opened thereafter only to the width of eighty feet and to that extent has been used by the public constantly. By an ordinance approved December 23, 1865, the width of the footways on said avenue between Broad and Twenty-fourth streets was fixed at thirty-five feet and the abutting property owners were authorized to fence in the twenty feet of the footways in front of their house line as an open space. It appears that the driveway was fifty feet in width and the sidewalk on each side fifteen feet and thus the entire portion used by the public as stated before was eighty feet in width. This was the condition of affairs when in 1906 the Philadelphia & Reading Railway Company entered into an arrangement with the City of Philadelphia.for the abolition of certain grade crossings, the cost to be divided equally between the city and the railroad company. The ordinance covering the improvements was dated October 13, 1906, and provided, inter alia, “For the necessary change of grade of certain streets,” “for the carrying out and completing of work of every character necessary to abolish the said grade crossings,” “the erection of bridges to carry said railroad over and ábove the streets now opened or opened under authority of this ordinance ...... between the south side of Allegheny avenue and the- north side of Hunting Park avenue,” and makes reference to the payment of damages by reason of “the change of grade of any street as herein authorized or by reason of the execution of any of the work herein provided for.” These are the only provisions of the ordinance which relate to the present inquiry. The city in the carrying out of the purposes of the ordinance depressed Allegheny avenue, so that an overhead railroad crossing could be made. In doing this it graded Allegheny avenue down to its present level to the width of eighty feet, that being the width of the street as actually opened. The viewers in their ascertainment of damages for the change of the grade of said avenue were confined to-.the width of eighty feet, that being the extent of the actual physical change. The plaintiff however contends that the damages should have been given for the entire width of the street although not graded to the house line; that if the city hereafter grades the remainder of the street he will be without remedy; that there can bé no separation of the damagés but that they must be recovered as an entirety in one proceeding and that if he fails to get his damages for the grading of the entire street to its full width now, he can recover nothing hereafter, should the city conclude at any time to grade the remainder of the street. He cites the Act of May 26, 1891, P. L. 117; Dettra v. City of Philadelphia, 245 Pa. 139; Hicks v. Williamsport, 235 Pa. 509; Deer v. Sheraden Boro., 220 Pa. 307. The Act of 1891 provides, “that in all cases of assessment of damages for the opening or widening of any street or highway, the award of damages, if any, shall include all damages due to the grade at which the said street or highway is opened or widened and the plan attached to the report of the viewers awarding the damages shall have thereon a profile showing the existing grade.”

The appellant contends that the cases above referred to show conclusively that under said act but one proceeding is contemplated in which all damages suffered by abutting owners affected thereby must be ascertained. A careful reading of the act shows that it refers only to the assessment of damages for the opening or widening of any street, it does not refer to the change of grade of any street. The plain intent of the act is that the original opening of the street shall include the grading of the street as designated in the ordinance and the damages for the original opening and grading must be recovered in one proceeding. We are met with a different proposition in the case before us. Allegheny avenue was opened long before the Act of 1891 was passed. The present proceedings at law are only rendered necessary by reason of a change of grade. The change of grade of Allegheny avenue was such as was required to effect the contemplated improvements. The main purpose of the ordinance was not to change the grade of the streets. It was to abolish grade crossings, and the lowering of the grade of Allegheny avenue was only incidental to the general purpose of the ordinance. The change of grade which was necessary was the lowering of the portion of the street which was actually in public use. The improvement being finished all that was necessary to be done to effect it has been done. There was no direction in the ordinance that Allegheny avenue was to be graded to the entire wddth. All we find to guide us is the word “necessary.” We therefore presume that the plaintiff is entitled to recover for the actual grading that has been done and that if the city hereafter should grade the remainder of the street, he, or the party then having the title, might recover damages and the record of the present proceeding could not be offered in bar of such action! Certainly, the city must not in every instance, when it wishes to change the grade of a street, grade it from house line to house line. It may in its ordinance divide the street longitudinally. In the case of Braucher v. Somerset Boro., 58 Pa. Superior Ct. 130, the plaintiff contended that he was entitled to an award of damages to the entire amount of the injury which his property would have sustained if the street had been graded to its full width from property line to property line and the grading of that width carried down to the level of the grading done by the borough in the cartway. The borough authorities admitted that the plaintiff was entitled to some damages but asserted that the borough had not undertaken to grade the entire street including the sidewalks; that the work which the borough had undertaken was completed and that the sidewalks still remained in place and asserted that the plaintiff was entitled to recover damages for the work which the borough had undertaken to do and which it had completed. This court reversing the court below decided that the plaintiff was entitled to recover for the injury which his property had actually sustained because of what the borough had done, but not upon any speculative theory as to what the borough may do in the future: Jones v. Bangor Boro., 144 Pa. 638; Markle v. Philadelphia, 163 Pa. 344; Howley v. Pittsburgh, 204 Pa. 428. Brother Porter who wrote the opinion in that case states, “The damages and benefits resulting from a public improvement are, it is true, required to be ascertained from the results of the improvement as an entirety. This, however, does not mean that a municipality, when it undertakes to grade a part of a street, be it either of the width or length of the same, must respond in damages upon the same basis as if it had undertaken to grade and actually graded the street throughout the entire length and width. The action of the borough in grading the cartway of the street, leaving the sidewalks at the former level, was clearly. within its delegated powers. The plaintiff is entitled to recovér damages for the injury to his property resulting from this lawful exercise of municipal power, but he is not entitled to recover upon the theory that the borough authorities máy at some future time reduce the grade of the sidewalk.”

That decision clearly rules the point in this case. If we are right in holding that the intent of the ordinance above referred to was carried out by the grading of Allegheny avenue to its width as physically opened, then the plaintiff’s damages are necessarily confined to the injury actually sustained and if the city thereafter should, by proper legislation, decide to grade the remainder of the street, the damages accruing must be then paid. This disposes of the first nine assignments of error.

The tenth assignment is as to the refusal of the lower court to grant a new trial. The only question we need consider under this assignment is the alleged inadequacy of the verdict. The plaintiff contends that the verdict being lower than the lowest estimate of any witness, it was an abuse of discretion on the part of the lower court not to grant a new trial. We do not think so. Beside the estimate of witnesses as to the depreciation of the market value by reason of the change of grade there was some evidence as to the cost of readjusting the properties to the changed conditions surrounding them and these estimates were to be considered along with the remainder of the testimony. In estimating the damages, the jury was entitled , to take into consideration, all the evidence in the case. The discrepancy in the verdict was not so glaring as to require a new trial. There was no abuse of discretion in the lower court’s refusal of it.

The eleventh assignment is directed as to the admission of testimony as to the number of trains passing at grade over Allegheny avenue in 1910. This was descriptive of conditions that existed immediately before the time of the change of grade and was a circumstance in the case. It had little probative value, but its admission did not constitute reversible error

The twelfth, thirteenth and fourteenth assignments of error are directed to the refusal of the court to ailow testimony as to the vacancies of the houses of the plaintiff and the specific dropping of the rent. The court rejected the testimony because the vacancy and the loss of rent might be due to many causes. Had the offer been made to prove the rental value of the premises and the diminution of this value by the change of grade it would have been relevant. No harm was done to plaintiff by the exclusion of this testimony as it was merely cumulative, he having testified to the same facts as he wished to establish by the witness.

The fifteenth and last assignment is to the allowance of damages for the delay in the payment of the claim. We think the instructions of the court taken in connection with the answer to plaintiff’s eleventh point were correct.

All the assignments of error are overruled. Judgment affirmed.