Butchers' Ice & Coal Co. v. Phila.

Opinion by

Me. Justice McCollum,

A considerable portion of the appellant’s printed argument is devoted to the discussion of a question which is not on the record. There was no exception taken in the court below to the admission of the evidence in relation to the market value of the wharf property before and after the construction of the sewer, and consequently there is no specification of error in this court which requires us to consider' whether such evidence was appropriate to the issue.

The first specification complains that the objections to a question contained in it were overruled, but as it does not embrace the answer to such question it is a defective specification which we would be justified in disregarding: Van Horne to use, etc., v. Dick, 151 Pa. 841. Inasmuch however as we discovered the objections and answer in our perusal of the testimony printed in the appendix to the appellant’s paper book we will say that we think the objections were not well taken. It was competent under the pleadings for the appellees to show how their property was affected by the sewer, and that injury to the former could have been avoided by an extension of the latter on the property of the city to the end of its own wharf.

The second specification is to the refusal of the court below to instruct the jury that if there was no want of reasonable care or skill on the part of the municipality in the construction of the sewer the verdiet should be for the defendant. This specification may properly be considered in connection with the third and fourth specifications, because taken together they raise the question whether in the absence of negligence the city is liable for an injury to adjacent property caused by the construction of its sewers. The appellant contends that it is not responsible for such injury and cites Malone v. The City of Philadelphia, 2 Pennypacker, 370, as authority for its position. In that case as in this a wharf property was materially injured by deposits of filth discharged into the river through a sewer constructed by the city. In each ease the deposits were formed in the dock adjoining the wharf and prevented the admission of vessels to it. But in Malone’s case the sewer was constructed prior to the constitution of 1874, and in conformity with the provisions of a statute which prescribed its course, while in this case it was constructed under an ordinance passed by councils in pursuance of a power conferred by the act of April 8, 1864, and after the adoption of the present constitution. In the first case the sewer was built in obedience to a legislative mandate, while the sewer in question was located and constructed by the city in the exercise of its discretion under the power conferred as above stated.

The city owns the land and wharf immediately north of the appellee’s property, and its wharf extends into the river 275 feet, while the wharf belonging to the appellees extends into the river but 162 feet. Between these wharves is a dock sixty feet wide into which the sewer opens at a point forty-seven feet from the appellee’s wharf or seventeen feet from the north line of their property. In this dock the deposits are formed which constitute the obstruction and produce the stench complained of. It is conceded that this condition is attributable to the construction of the sewer and materially detracts from the value of the appellee’s property. It was shown on the trial, and not denied, that the injury to their property might have been avoided by the extension of the sewer to the end of the city’s wharf. Upon these facts, are the owners of the injured property without remedy? j Must they convict the city of negligence in the construction of the sewer in order to maintain their action for the damages they have sustained by it ? In addition to Malone v. The City, the appellant cites and relies on Carr v. The Northern Liberties, 35 Pa. 324; Fair v. The City, 88 Pa. 309, and Collins v. The City, 93 Pa. 272, to support affirmative answers to these questions. A plain distinction appears between the cases last mentioned and the case under consideration. In the former, the claims for damages were founded upon the alleged inadequacy of the sewers to carry off the surface water during heavy showers, and in the latter the claim rests on the undisputed fact that access to the appellee’s wharf is obstructed by deposits of foul matter discharged through the sewer. These deposits are on the appellee’s' property, and the natural and necessaiy result of the location and construction ’ of the sewer in question. It is' a sewer through which the filth drained from a thickly populated portion of the city and a large manufacturing district is discharged. Its dimensions at the bulkhead or point of discharge are seven by eleven feet, and its capacity is no greater than is required to properly carry off the filth from the district it drains. This filth is deposited in the dock by which the appellees have lawful access to their wharf, and, as we have seen, materially obstructs if it does not actually cut off such access.

It seems clear to us that for the injury done to the appellees’ property by the construction of the sewer the city is liable under section 8, article 16 of the constitution, which provides that “ Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements.” This liability is for consequential damages, and is not affected by the fact that the sewer is on the city’s land and opens into a dock adjoining the city’s wharf, nor is it necessary to the existence of the liability that the land on which the sewer was constructed should have been taken by the city in the exercise of the right of eminent domain.

The specifications are overruled and the judgment is affirmed.