Norris v. City of Philadelphia

The opinion of the court was delivered, January 29th 1872, by

Thompson, C. J.

I cannot see any value in discussing the numerous cases arising under the peculiar legislation applicable to the recovery of damages assessed to owners of real estate taken for streets, roads, railroads and other public improvements. There is no uniformity in them, the legislation of which they are predicated being diverse.

We have, we think, a clear legislative rule in the Act of 1864, by which the present case must be ruled, and which saves all trouble of construction. The question here is, when did interest begin to accrue on the award of the viewers in this case, from the filing of the report, or from its confirmation ? The second section of the Act of 1864, among other things provides, “When said award is confirmed by the court, the street shall forthwith be opened by the proper authorities of the city of Philadelphia, and said city shall pay to the respective owners of the property damaged, or their legal representatives, the damages so assessed for said property. The city is certainly not required to pay, until confirmation by this act. That the obligation to pay cannot be enforced until confirmation, is thus so plain, that we think we need not argue the point. In fact the damages are not settled until confirmation. The award might be said to be ambulatory, or like a will before the testator’s death. It has form and shape, but is not obligatory. So is the award of the viewers under this act. Nor can the property be taken until that time, so that the owner is not necessarily actually deprived of its use before confirmation, although, as in this case, the effect may be to prevent its use. This is only one case however. Others may arise in which a profitable use may continue until the confirmation of the award, and there the rule would be inequitable to the party who is to pay the assessments.

Whatever has, or may be said of The City v. Dyer, 5 Wright 463, the fact is shown by a simple calculation of interest on the award, that interest was only allowed in the final judgment, from the confirmation of the award. ' Any person can satisfy himself of this by making the calculation from the papers on file. The result of the case was this and no more. It required an Act of Assembly to authorize an allowance of interest on a verdict before judgment: Kelsey v. Murphy, 6 Casey 340. Why should it not be so in case of an award like the one in question, before confirmation, which is equal to a verdict at least? We will not however pursue the subject further. We are all of opinion that the case was well decided below, and the judgment must be affirmed.