Duke v. B. & C. V. R. Extension Co.

Opinion,

Mr. Justice McCollum:

The offer of the ordinance of September 23, 1880, was properly rejected. It was not relevant or material to the issue made by the pleadings. It was alleged by the plaintiff that the railroad company, in constructing its road upon Water street in the borough of Chambersburg, made an embankment in the street in front of his lots, by reason of which he sustained damage; and this allegation was denied by the company. The ordinance did not fix the grade of Water street, nor attempt to do so. It merely granted to the railroad company the right to use the street for its road, provided it conformed to a certain grade. It was the grade of the railroad to which the proviso referred. In this case the grade of the railroad did not conform to the actual grade of the street. We need not discuss the question of the liability of a railroad company for damages, where it locates its road in conformity with the paper grade of a street, before an actual change of grade is effected by the city or borough authorities. It will be time enough to consider this question when it fairly arises.

We think the reasons given by the learned judge for excluding the evidence, are a sufficient vindication of his ruling.

The judgment is affirmed.