Pusey v. City of Allegheny

Mr. Justice Gordon delivered

the opinion of the court,

Under the 8th section of the 16th article of the constitution of this Commonwealth, municipal, as well as other corporations, in whom are vested the right of eminent domain, are required to make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements. This is an advance upon the limitation of the right of eminent domain, as found in the bill of rights both of the present constitution and that of 1838. Corporations in whom the legislature has vested this right, are, by this section, made liable for damages resulting to private property, from the construction, use or alteration of their works, ways or other improvements ; in other words to such damages as are ordinarily called consequential. This being now tire supreme law of the land, it znust govern the case under consideration, and it is idle to. recur to decisions and legislation, the authority of which, as to all present and futuz’e cases, is, by this pz’ovision, annulled. The report of viewers from which the appeal in this case was taken, was filed, as we are informed by the statement of the plaintiff in error1, on the lltlz of September 1875, and the ordinance for the opening of Charles street bears date March 12th 1874 Whether the cutting and grading complained of were done between these dates, or subsequently to the former’, we do not know, as we have nothing in the shape of a record from which to inform ourselves. Neither, for the same reason, do we know the amount of damages awarded by the viewers, or how they were made up. It is for this reason that we cannot entertain the allegation of the counsel for the defence that there had been no grading done until after the report of viewers, nor his argument, based on this hypothesis, that it was improper for the jury to consider what the viewers could not have passed upon. No such question appears to have been raised in the court below, and we cannot agree to discuss what is not before us.

The third point of the defendant developes the material subject of controversy, and is as follows: “ That the measure of damages is the difference between the value of the property as a whole, with the street located thereon, and the property as it was before tbe street was located, without regard to grades after-wards made.”

This point was refused, and we think, for the reasons already given, it was properly refused. But to this decision the court did notoadhere. A special verdict was directed, and the jury found that the damages, resulting over the above all advantages, from the appropriation of the land alone, were $5,548 ; that the damages to the remainder of the property, consequent upon the construction of the street, its grades, cuts, fills, slopes and walls, and including the value of the land, were equivalent to the sum of $12,500. Upon this verdict the court entered judgment for the amount first named, and rejected the larger amount which included consequential damages. This judgment was erroneous. As we have seen, the constitution in positive terms requires compensation to be made, not only for the private property that a corporation may appropriate to its own use, but also for such as it may injure or destroy. Hence the plaintiff was entitled to recover whatever damages she had suffered at the hands of the city, whether direct or consequential, and the contention that she must divide her claim, and recover for the property appropriated for the street, under the Act of 1870,' and for the injury resulting from the cutting and grading by a different process under the Act of 1876, cannot be sustained. Such a method of splitting up damages resulting from a single transaction, and thus multiplying suits, is contrary to all legal policy; neither can it be supported by the Act cited. Under this statute, where the grading occurs as a separate act of the public authorities, and so long after the opening of the street that the assessment of the damages at the time of the appropriation cannot include those resulting from the grading, the latter may be ascertained by a second view, but not so where both can be assessed at one and the same time. The taking and the injury to the remaining land form but a single subject of complaint, and for them there can be but one assessment.

From this it follows, that the property owner not only may, but must, submit his whole claim to the viewers and to the court, and that part thereof which he neglects so to submit must be taken to have been waived, and no second process can be had for its recovery.

The judgment of the court below is now reversed, and it is ordered that judgment be entered for the plaintiff in the sum of $12,500, the full amount of the special verdict, with interest and costs.