Mellor v. City of Philadelphia

Opinion by

Mr. Chief Justice Sterrett,

This is one of sixteen cases which were tried in the court below on appeals from the report of viewers appointed to assess damages caused by changing the grade of Orthodox street in the city of Philadelphia. The plaintiffs respectively owned property fronting on the north side of Trenton avenue, a narrow street running nearly east and west along the northerly line of the New York division of the Pennsylvania railroad. Until recently, Orthodox street and another street named Margaret, about four hundred and fifty feet further east, both crossed said railroad at grade and nearly at right angles thereto. Owing to the vast increase in every form of street travel and the greatly increased business of the railroad company, these grade crossings became so exceedingly dangerous that councils deemed it necessary to lower the grades of Orthodox and Margaret streets and thus carry them both under the railroad. This was accordingly done by lowering the grade of each to such an extent that the cut across Trenton avenue was about fifteen feet deep. That, of course, cut off all communication, except by pedestrians, with either of said streets, and that portion of Trenton avenue lying between them, and practically prevented ingress and egress, by vehicles, to and from that part of Trenton avenue west of the Orthodox street crossing. The respective properties of ten of the plaintiffs were located between said streets, and are referred to by counsel as the “ eastern group.”

The remaining six properties, located west of Orthodox street, are referred to as the “ western group.” For convenience’s sake, the appeals relating to the respective lots of each group were tried by the same jury. In each case, however, ' separate verdicts were rendered in favor of the plaintiffs repectively.

It is not our purpose to refer to the testimony showing the extent to which the several properties were damaged by said change of grade. The proof is clear, positive and undisputed, except as to the amount of damages in each case. Speaking approximatively, the plaintiff’s witnesses fixed the damages at about fifty per cent of what was the market value of the property before the grades were so lowered as to practically cut off access to Trenton avenue. On the other hand, defendant’s witnesses testified that the damage was about twenty-five per cent of said market value. The witnesses of course differed more or less as to what the market value was ; but, aside from these discrepancies as to amounts, the consensus of the testimony on both sides is that all of the properties in question were injured by the change of grade to the extent of from about one fourth to one half of their previous market value. On the trial of each group of cases, the testimony bearing on the question of damages was fairly submitted to the jury by the learned president of the common pleas in a clear and able charge which appears to be entirely free from error. The respective verdicts in each class of cases were fully warranted by the evidence, so far at least as the proof of damages and the proximate cause thereof are concerned.

It is conceded that in making the improvements the city authorities acted in the line of their duty. In fact the public safety demanded that the grade crossings should be avoided, and the only feasible way of doing so was that which was adopted.

The respective claims of the plaintiffs to compensation were based on the constitutional provision 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 : ” . . . Const., art. 16, sect. 8. Defendant’s contention was that this provision is inapplicable to any of the eases under consideration, because neither of the properties fronts or abuts on either of the streets, the grade of which was changed. This would indeed be a very narrow and unreasonable construction of the words above quoted, especially in view of the history and object of the constitutional provision. It was intended to provide against the great injustice that was continually resulting from the ruling of this court in O’Connor v. Pittsburgh, 18 Pa. 189, that “ the constitutional provision for the case of private property taken for public use extends not to the case of property injured or destroyed.” In connection with this statement of the controlling principle in that case, Mr. Chief Justice Gibson suggested that the omission might be supplied by ordinary legislation ; but no such legislative action was ever taken. It was not until the adoption of our present constitution nearly a quarter of a centuiy thereafter, that an appropriate remedy was provided in the form of the section above quoted. In doing this the people of the commonwealth recognized, in a practical way, the justice of compensating private property owners, not only for property taken, but also for property injured or destroyed by municipal and other corporations and individuals, of the specified class, by the construction and enlargement of their works, highways or improvements. There is nothing in the phraseology of the section that can be even tortured into a limitation of its provisions to property fronting or abutting on the particular work, highway or improvement, by the construction or enlargement of which said property was injured or destroyed. The section in question cannot be thus narrowly construed without reading into it words which are not in it and were never intended to be there.

It was contended, on behalf of the city, that, inasmuch as the properties of the several plaintiffs do not front on Orthodox street, they “ are not entitled to any damages; that because Trenton avenue has not been changed, the plaintiffs, no matter how much they have been injured, are not entitled to damages for the alteration of the side street; ” and points for charge substantially to that effect were submitted. The learned trial judge very properly refused to thus narrowly and unreasonably construe the constitution. He rightly conceded, however, “ that where the street which undergoes an alteration is not sufficiently near to the property of a citizen as to make the injury proximate and immediate and substantial, he would have no right to claim damages for change of grade of such a street; ” and in connection therewith he appropriately added: “ In case of properties situated as these properties are, and so affected by the change of grade that their ingress and egress to and from their houses is materially injured, partly destroyed, and where the injury is so obvious that it admits of comparatively easy calculation as to the extent of the diminution of the value of the property, I cannot doubt that such a case is covered by the constitution,” etc.

The first three together with the fifth specifications of error to the respective judgments in the “eastern group” of cases,, relate to the admission of testimony tending to show the damages resulting not merely from lowering the grade of Orthodox street, but from changing the grades of both Orthodox and Margaret streets, and the effect of that testimony. This did the defendant no harm. The work on Margaret street was completed shortly after that on Orthodox, but before the trial. The record of the testimony shows the difficulty, if not the impossibility, of ascertaining with any degree of accuracy what proportion of the damage was done by each; and the plaintiff, with the approbation of the court, proceeded to show the damages done by the grading of both streets, and in connection therewith filed provisional releases of further claim for damages occasioned by the grading of Margaret street. This was entirety just and proper, and should not have been objected to by the city. If either party was more benefited than the other, by this mode of trial, it was the defendant. Upon the payment of these judgments the releases referred to will operate as an absolute bar to any claim by either of the plaintiffs for further damages resulting from the cutting down of Margaret street.

Further consideration of the questions involved in the specifications of error is quite unnecessary. The cases were carefully and ably tried by the learned president of the court below. The correctness of his rulings, so far as challenged by either of the specifications, is amply vindicated by his clear and concise charge in each group of cases respectively. The judgment in this, as well as the judgment in each of the other cases, is therefore affirmed.