DocketNumber: Appeal, 177
Citation Numbers: 143 A. 134, 293 Pa. 483, 1928 Pa. LEXIS 546
Judges: Schaffer, Moschzisker, Frazer, Walling, Simpson, Kephart, Sadler, Schaefer
Filed Date: 5/8/1928
Status: Precedential
Modified Date: 11/13/2024
Argued May 8, 1928. Appellant presented his petition for the appointment of viewers to assess damages done to his property at the southwest corner of Fifteenth and Sansom Streets, Philadelphia. The court below dismissed the petition. The building, formerly a dwelling, now used for business *Page 485 purposes, occupies the entire lot fronting sixteen feet on Fifteenth Street and extending along Sansom Street for a depth of sixty-four feet. Six inches are appropriated for party wall purposes by the adjoining owner on Fifteenth Street to the south, leaving available for building frontage only fifteen and a half feet.
On July 7, 1926, an ordinance was adopted by the city providing for the revision of the lines of Sansom Street from Broad Street to Twenty-Second Street by adding to its width thirteen feet on the south side. The ordinance provides that, after the confirmation of the new line on the city plan, it shall not be lawful to erect a new building or rebuild or alter an existing one on the south side of the street without receding to the new line, so far as the first floor is concerned, although it may be arcaded above a height sixteen feet from the pavement. The new line was duly confirmed by the proper municipal authorities.
Appellant's property is assessed for taxation at $180,000. Its carrying charges in excess of revenues subject him to a very substantial annual loss. In the petition it is averred that in order to make the property income-producing, appellant employed an architect to design, and a builder to construct, a six-story building covering the entire lot, and made application to the bureau of building inspection for a permit to erect, which was refused on the ground that the proposed structure did not conform to the widening ordinance, as the first floor did not recede thirteen feet from the old building line. It also sets forth that it is impossible to construct a building, even though the first floor be arcaded, on what would be left of the lot, as there would be only two feet six inches of available space, on which small area it would be impossible, under the prevailing building regulations, to erect even the necessary walls and stairs to afford access to the upper floors. This is not denied by the city.
Being refused the right to erect the building, appellant began this proceeding to have viewers appointed to *Page 486
assess his damages. The court's refusal to make the appointment was based on the view that, as the city admittedly has not yet passed an ordinance for the widening of Sansom Street or the taking of petitioner's property and as the time for the assessment of damages accrues only when the ordinance to open, take, or increase width is formally passed, the application was premature. It was determined that what had been done amounted to no more in effect than the plotting of the new street line, and, that the mere change of a street line on the city plan, without anything further, does not constitute a taking in the constitutional sense so as to give an abutting owner the right to have damages assessed, that such plotting under the authorities is only the expression of an intention to take the land when occasion arises. The court relied for its conclusion upon such cases as Forbes Street,
The case before us differs on its facts and in the situation created by the adoption of the ordinance from any of those heretofore passed on. If the ordinance had provided for a sixteen feet widening of Sansom Street, so that the whole of appellant's property would be included within the street lines and he could make no future use of it by either building anew or remodeling, we hazard the thought that it would not be contended by *Page 487
the city that he was not entitled to have his damages assessed upon the passage of the ordinance, or, at least upon proof that his further use of the building must be at a loss. That, in point of fact, is the situation with which we are dealing; it is much the same as though the entire property were included within the street lines, because the owner can make no use whatever of the small strip two and a half feet wide which remains outside the highway's limits. In the Chestnut Street widening cases, we held that damages could be claimed when the actual recession took place, but here the landowner cannot recede for any practical purpose and the law would not requite him to do such a vain and useless thing as to tear down the existing building and to erect one which could not be used. The Philadelphia Parkway Case,
We reiterate what was said in the Parkway Case and in Hermann v. North Penna. R. R. Co.,
The order of the court below dismissing the petition is reversed and the petition is reinstated, with directions to appoint viewers as prayed for, costs to be paid by the City of Philadelphia.
Forbes Street , 1872 Pa. LEXIS 11 ( 1872 )
Whitaker v. Phœnixville Bor. , 141 Pa. 327 ( 1891 )
Widening of Chestnut Street , 118 Pa. 593 ( 1888 )
Change of Grade in Plan 166 , 143 Pa. 414 ( 1891 )
Bush v. McKeesport City , 166 Pa. 57 ( 1895 )
Philadelphia Parkway , 250 Pa. 257 ( 1915 )
City of Philadelphia v. Linnard , 97 Pa. 242 ( 1881 )
Volkmar Street, Philadelphia , 124 Pa. 320 ( 1889 )
South Twelfth Street , 217 Pa. 362 ( 1907 )
Chelten Trust Co. v. Blankenburg , 241 Pa. 394 ( 1913 )
Hermann v. North Pennsylvania Railroad , 270 Pa. 551 ( 1921 )
Scattergood v. Lower Merion Township Commissioners , 311 Pa. 490 ( 1933 )
Miller v. Beaver Falls , 368 Pa. 189 ( 1951 )
Cleaver v. Board of Adjustment , 414 Pa. 367 ( 1964 )
McCrady Case , 399 Pa. 586 ( 1960 )
Hilltop Properties, Inc. v. State , 43 Cal. Rptr. 605 ( 1965 )
Johnstown v. Fearl , 317 Pa. 154 ( 1934 )
Penn Builders, Inc. v. Blair County , 302 Pa. 300 ( 1930 )
Troup Et Ux. v. N. Bethlehem Boro. , 122 Pa. Super. 198 ( 1936 )
Philadelphia Parkway Opening , 295 Pa. 538 ( 1929 )
City of Miami v. Romer , 1954 Fla. LEXIS 1526 ( 1954 )
Rawls v. Central Bucks Joint School Building Authority , 8 Pa. Commw. 491 ( 1973 )
Philadelphia Appeal , 364 Pa. 71 ( 1950 )
C.A. Conley, an Individual v. County of Allegheny ( 2020 )