Bor. of New Brighton v. United Presb. Church

Citation96 Pa. 331
PartiesBorough of New Brighton <I>versus</I> United Presbyterian Church.
Decision Date26 November 1880
CourtUnited States State Supreme Court of Pennsylvania

Before MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. SHARSWOOD, C. J., absent

Error to the Court of Common Pleas of Beaver county: Of October and November Term 1880, No. 307.

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W. S. Morlan and S. B. Wilson, for plaintiff in error.—Where a street was laid out by the owner of property thirty years ago, and was dedicated to the use of the public by him and accepted by them, it is a public highway, and purchasers from the original proprietor have no other rights in it than the adjoining owners have in any other street, whether opened according to law or dedicated to the public use by the owner of the soil: Mercer et al. v. The Pittsburgh, Fort Wayne and Chicago Railroad Co., 12 Casey 99. And we take it that the purchaser has no other or greater rights as against the public, than the original proprietor had after the dedication.

This is not a taking of property, neither is it an enlargement, as the street is neither widened nor lengthened; the work complained of is changing the grade, and the street in fact was cut down to a six degree grade; but was that such an enlargement as is meant in the Constitution? Was it doing anything more than was contemplated between David Townsend and the public at the time of the dedication should and must necessarily be done to carry out the purpose of the dedication, and for which damages were tacitly waived?

To bring a case within the Act of 1878 there must be a change or alteration in the grade from what it was originally made. Therefore the word grade, when applied to a road, means it has a fixed condition; either naturally or artificially, fit for travel of all kinds, but where it is steep naturally, as to be unfit for travel, it has no grade, and to level it down to a proper degree of elevation is to fix or make a grade, and not to change a grade as claimed by defendant in error.

Frank Wilson and J. R. Harrah, for defendant in error.—The plaintiff admits that there was no passable highway along the line of defendant's lot until 1878, but merely a place where one could be, and was likely to be constructed. Is the construction of a highway, for injuries resulting from which sect. 8 of the 6th article of the Constitution provides, the mere location and throwing open of a street or road, or does it consist of making such street or road a highway over which the public may pass and repass? If, then, the constructing or building of a highway is to be compensated for, why is the defendant in this case to be deprived of its constitutional right to just compensation for the injury caused by the construction and enlargement of Apple street? As to the remedy provided to carry out this section of the Constitution, the Act of 1878 is evidently framed to that end. It provides not only for a change of grade, but for any alteration or enlargement of a street or alley whereby damage is caused to the owner of property abutting thereon. This street was not only changed in grade, but was in every way altered; thus Fifth Avenue, in the city of Pittsburgh, was altered, when the cathedral was left inaccessible, and this case appears to be within the mischief the Constitution and Act of 1878 design to remedy. Even without the Act of 1878 we would not be remediless: City of Reading v. Althouse, 12 Norris 400. The Act of 1878 should be liberally and beneficially expounded, so as to suppress the mischief and advance the remedy, inasmuch as it seems quite evident that since the...

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33 cases
  • Johnson v. City of St. Louis
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 6, 1909
    ......31 JOHNSON v. CITY OF ST. LOUIS. No. 2,863. United States Court of Appeals, Eighth Circuit. July 6, 1909 . ...145, 3 L.R.A. 565;. Borough of New Brighton v. United Presbyterian. Church, 96 Pa. 331, 339; ......
  • McGrew v. Granite Bituminous Paving Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 12, 1913
    ...City v. Pollock, 141 Ill. 346; McElroy v. Kansas City, 21 F. 259; Brown v. Seattle, 5 Wash. 35; Chicago v. Taylor, 125 U.S. 161; Brighton v. Church, 96 Pa. 331; Werth Springfield, 78 Mo. 107; Householder v. Kansas City, 83 Mo. 488; Davis v. Railroad, 119 Mo. 180; Hickman v. Kansas City, 120......
  • Town Of Galax v. Waugh
    • United States
    • Supreme Court of Virginia
    • September 17, 1925
    ......Va. 226; Borough of New Brighton v. United Pres. Church, 96 Pa. 331; Sallden v. City of ......
  • In re Opening of Ruan Street
    • United States
    • United States State Supreme Court of Pennsylvania
    • February 17, 1890
    ...on the plans: Philadelphia v. Wright, 100 Pa. 235; Campbell v. Philadelphia, 108 Pa. 300; Forbes Street, 70 Pa. 125, 127; New Brighton v. U.P. Church, 96 Pa. 331; Hendrick's App., 103 Pa. 358. By § 15, limitation is made to run from the physical change, and claims already barred are thus re......
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