Hoster v. City of Philadelphia

Opinion by

Rice, P. J.,

In changing the grade of Twentieth street and Clearfield street, pursuant to ordinance, the city filled up a creek or run, which is described in the case stated as flowing over said streets near their .intersection. The effect was to render useless a drain through which the surface water had been conducted from the plaintiff’s premises, in consequence of which the water backed up on his premises and injured them. It is not alleged in the case stated nor in the plaintiff’s statement of claim that the injury of which the plaintiff complains was caused by the negligence of the city or its employees. On the contrary, it is admitted that it was “ by reason of the change of grade ” that the run was filled up. A case stated like a special verdict must set forth facts distinctly and unequivocally, and nothing must be left to inference. Whatever is not expressly agreed upon and set forth must be taken not to exist: 2 P. & L. Dig. of Dec. & Ency. of Pa. Law, Col. 2494, etc.; Loux v. Fox, 171 Pa. 68; Morgan v. Mercer Co., 8 Pa. Superior Ct. 96. Therefore any argument ‘based on the supposed right to maintain a common-law action for negligence in the prosecution of municipal improvements of this kind is out of place. Upon the admitted facts, the injury of which the plaintiff complains was the direct and necessary consequence of the grading of the streets, which was duly authorized. The city was not a wrongdoer. Its act was not a tort. The act of 1891 provided an adequate remedy for the ascertainment of all the plaintiff’s damages, which, under the circumstance of the case, was exclusive: McKee v. Pittsburg, 7 Pa. Superior Ct. 397. It is no answer to say that the viewers did not award him all the damages he was entitled to. If he was not satisfied with their award his remedy was by exceptions or appeal. It is too plain for argument that he could not take the damages they awarded him and then bring an action for the residue of his claim.

The judgment is affirmed.