Ralston v. Sharon Hill Borough

Opinion by

Orlady, J.,

The borough of Sharon Hill, by proper proceedings, decided to construct a system of public sewers, and • in order to connect this system with Darby creek,, they entered into an agreement with the. owner of intervening land, known as the Lafferty farm of 112 acres, by which they obtained the right to lay two lines of terra cotta pipe across his land, aggregating about 1,300 feet in length. The plaintiffs were tenants of the property and operated it as a dairy farm. Not being able to agree with the borough in regard to the payment of the damages claimed by them for the entry upon the farm during their tenancy, they presented their petition for the appointment of viewers to assess the damages, and this action is a feigned issue, framed on an appeal from the award of a jury of view in that proceeding.

There can be no ground for controversy as to the law applicable to this case. In Chatham Street, 16 Pa. Superior Ct. 103, it was held that the municipal authorities, when adopting a plan for the location of a street,- sewer or other improvements, are vested with a discretion which the courts are without power to review, and in passing upon the benefits or damages arising from the execution of the plan, evidence tending to show that some other plan might have been more beneficial or less injurious is not admissible. A claimant is not to be .thrown out of court merely because in the opinion of the viewers, court or jury, the municipality might have adopted a different plan which would have served all useful purposes and worked no injury to the adjoining property. The injuries for which the municipality must answer in an action of trespass are those which result from negligence in the execution of the plan adopted. And as in Stork v. Philadelphia, 195 Pa. 101. The right .of the plaintiff to recover in this action was limited to the damages arising from such injuries as were the direct, immediate and necessary or unavoidable consequences of the act of eminent domain itself, irrespective of care or negligence in the performance thereof. For such injury a proceeding before viewers is the remedy provided by law. But if the injury resulted from negligence in the performance of the work the remedy must be by an action of trespass.

In Fyfe v. Turtle Creek Boro., 22 Pa. Superior Ct. 292, we said that when the improvement is the direct and proximate cause of an injury and the loss is the necessary and unavoidable consequence of a careful execution of the work, the land and every right of property thereto appurtenant is within the protection of art. XVI, sec. 8, of the constitution of Pennsylvania, and the act of May 16, 1891, P. L. 75, affords a prompt and appropriate remedy.

In this case the trial judge repeated the rule above announced a number of times in his general charge and concluded, as follows: “Now, this question is for you, gentlemen. It is all a question of fact. Take it and dispose of it, and award to these plaintiffs what they suffered, what their injury was from the necessary consequences of this work on this plan, and dismiss from your mind all damage that was caused by negligence in its execution.”

The case was tried.with great care both by counsel and court and the principal contention was in regard to the manner in which the work was done, the use of certain machinery, the amount of space occupied by the earth taken from the ditch, and the travel of men and wagons along its course, the length of time occupied, the character and value of the crops on the ground, all of which were properly submitted to the jury in a manner that could not be misunderstood. The appellees were excluded from the use of the land during the time , of the construction, nor could they interfere with the work, nor fix a time when it should be completed. It was purely a case for the jury, and was so regarded by the defendant as it adduced testimony in regard to the damages claimed by the plaintiff, so that there could be no binding instructions in its favor as asked for in a point submitted, nor do we find any error in receiving the testimony represented by the assignments of error. They are excerpts from a full examination of the witnesses, who were fully cross-examined, and the subject-matter of their testimony carefully investigated. The credibility of the witnesses and the effect to be given their testimony was for the jury. The assignments of error are overruled and the judgment is affirmed.