Whitaker v. Phœnixville Bor.

Opinion,

Me. Justice Geeen :

The ordinance ordaining Fourth Avenue was passed in June, 1887. The petition of the borough, to have damages assessed for opening Fourth Avenue, was presented in August, 1889. In the meantime, in July, 1888, Mr. Whitaker, the plaintiff, sold to Miss Caswell two lots, measuring together on Main street ninety-three feet, and extending along Fourth Avenue the whole depth of the lot. At the time, therefore, the proceedings to open were commenced, the plaintiff owned only the ground which was actually covered by the street, along the line of the street. ^* He had no land left which abutted on the street. There is no doubt that where a person owns all the ground which the street takes, he is entitled to the full value of the land taken; and there is no question of advantages and disadvantages to be considered. The only question that is raised on the present record is, at what time is the assessment to be made ? If at the time of the ordaining of the street, the case was properly tried in the court below, and the judgment should be affirmed; but if at the time of the opening or of the commencement of the proceedings to open, the case was wrongly tried, and the judgment should be reversed.

We did decide in Philadelphia v. Dickson, 38 Pa. 247, that the owner had a right to have his damages assessed as soon as the street was established, whether it was opened or not; but that was because the act of 1855 expressly gave that right to the owner. The act of 1856, under which the present proceedings are instituted, contains no such provision, and hence that case is no authority for this. But in Volkmar St., 124 Pa. 320, we decided that the right of action to have damages assessed to the owner did not commence until the opening of the street or the doing of some unequivocal act by the city which indicated that the possession of the owner was about to be disturbed. And in Easton Bor. v. Rinek, 116 Pa. 7, we held that no damages were sustained until the street was opened.

It was thought by the court below that the plaintiff, by his sale to Miss Caswell, had already reaped the advantages of the ordaining, and practical^ of the opening of the street, and testimony was certainly given tending to prove that fact. But does that circumstance change the rule of law as to the time at which the damages are ascertained ? We think not. The rule remains the same, and if the owner has obtained an advantage by the delay of the borough in opening the street, we see no reason why he should be deprived of the benefit of the rule on that account. It is simply an advantage which he has acquired by force of the circumstances^ At,, the time of the proceedings to open, he did, in fact, own only the land taken, for the street, and that land was not a part of any other and larger tract owned by him. It is difficult to understand upon what principle we can go back to an anterior time when he held other land in connection with this, in order to deprive him of the value of the land now taken. If we can go back one year for that purpose, there is no reason why we cannot do so for live, ten, or twenty years. Yet to do this would seem strangely unreasonable, when we consider all the changes of title and improvements which may have taken place on the intervening land in the meantime.

It is a very common occurrence in the boroughs and smaller towns of the interior of the state, that streets are plotted upon duly authorized maps and formally adopted by the authorities, upon adjacent farm lands lying within the municipal limits, many years before they are opened. The damages for opening these streets cannot be asessed until the land covered by the streets is actually taken. If an owner still continues to own adjoining land, he, of course, must submit to the application of the doctrine that his damages for the part taken must be estimated with reference to the effect of the opening of the street upon the value of his entire holding. But if he has, in perfect good faith, years before the opening, sold off all his land except that which is taken for the street, why shall he not have the value of the land taken as the measure of his damage? We see no reason why. The time of the opening is the legal time for assessing the damage to the owner. At that time he has no land but the land taken, and he is entitled to its value. Rules of law do not shift and vary according to changing circumstances. When an owner who has no land but that which is taken, invokes the law as it is, with reference to all other citizens, he cannot be told that at some more or less remote time he owned other contiguous land, and therefore he cannot have the protection of the law as other citizens can. There cannot be two different and conflicting rules applicable to the same state of facts. Wo are of opinion that the allowance for advantages, on the ground that the land taken is part of a larger tract belonging to a common owner of the whole, cannot be made against the plaintiff, because he is not such an owner at the time his land is taken.

It is possible, however, that the value of the land taken by the street may be affected to some extent by the fact that the plaintiff had sold off the adjoining land to another as a corner lot adjoining Fourth Avenue, and thereby gave the right of frontage on the avenue to his grantee, and deprived himself of all right to interfere in any manner with the frontage line of the lot sold. If this difference in the character of his ownership, after the conveyance of the lot, affected the value of the remaining ground covered by the street, the plaintiff could only recover the value of that land as affected by the conveyance of the adjoining ground. The question whether the value of the ground was thus affected, and to what extent, should be left to the jury, with instructions that it is only the value of the land, subject to the right of the grantee of the adjoining lot to have a clear front on the avenue, that should be allowed as damages.

The assignments of error are all sustained.

Judgment reversed, and new venire awarded.