City of Philadelphia v. Dyer
| Decision Date | 03 February 1862 |
| Citation | 41 Pa. 463 |
| Parties | The City of Philadelphia <I>versus</I> Dyer. |
| Court | Pennsylvania Supreme Court |
David W. Sellers and Charles E. Lex, for plaintiffs in error.— If the judgment of the court below is affirmed, the city will be obliged to pay for ground of which the plaintiff below has had the profitable enjoyment, and in disregard of the appropriating power of the city. Such could not have been done before the Act of April 21st 1855. The report of a jury of damages, under the General Road Laws of the Commonwealth, has relation "to the time when the street should be opened. The proceeding would be vacated by lapse of time, at the end of a year, if the public did not exercise its right, and it is true that, in the mean time, the owner, by the uncertainty of the event, might be prevented from making improvements, but that is an inconvenience which the legislature did not mean to compensate:" Stewart v. The County, 2 Barr 340; Commonwealth v. County Commissioners, 2 Whart. 289. The 7th section of the Act of April 21st 1855 has changed the general road law, inasmuch as under it a party has a right to sue at the end of a year, if not paid meanwhile: City v. Dickson, 2 Wright 249.
But it is submitted that the 18th section of the Act of May 13th 1856, P. L. 56, 567, has placed the owners of property who petition under a resolution of councils, in the same legal position, as to the institution of a suit, as those who petition in the ordinary course under the General Road Laws; that is to say, if the county actually opens the street, the award must be paid, but the petitioner cannot compel the county to make the appropriation if the street is to remain unopened. "The damages are the consideration-money for the property of an individual taken as a street for the public use. * * * * * If the property is not transferred to the public, but the owner retains it as before, he cannot compel payment for it because he is in nowise injured by this result: Commonwealth v. County Commissioners, 2 Whart. 294. The city, however, has made an appropriation, guarded with reasonable provisions, which are within the scope of their power and discretion. How, then, could the plaintiff sue? As the councils have made the appropriation, he has not demanded it from the proper officer appointed to pay the same, and without such a demand no suit is well founded: Luzerne County v. Day, 11 Harris 143. The appropriation to pay the sum awarded was to be paid when the city solicitor, upon proper searches, shall certify there are no liens upon the land to be taken; and have also provided for the opening of the street. As all lien-creditors have claims upon the land, it is the duty of the city to see that the fund is not misappropriated: In the matter of Noble Street, 1 Ashm. 276; Cresson's Estate, 4 Penn. L. Jour. 468. The case of City v. Dickson is not a precedent for this, as the Act of 1855 was only applicable to that case, and the construction of that act was only before the court; nor was the question of the allowance of interest raised, as the city, in that case, had taken possession of the ground by laying water-pipe therein. In this case, however, the report of the jury was not confirmed until October 28th 1856, which subjects the award to the Act of May 13th 1856.
The Court of Quarter Sessions, under the above decisions, never issued an order on the treasurer of Philadelphia county, for the payment of road damages, until all liens were removed, and the Commonwealth became seised of an unencumbered title to the highway; but under the provision of the 4th section of the Act of May 13th 1856, P. L. 567, the mode by which road damages have been paid has been altered, and the course pointed out in the ordinance has been adopted. But the plaintiff below plants his case on the award of the jury, irrespective of the Act of 1856, and of the ordinance of 1860; for if he had sued upon the ordinance making the appropriation, he certainly would have been obliged to have shown a compliance with its provisions, which is not produced.
And as the plaintiff below has had the use of his property, and is in precisely the same position as he was when the award was confirmed, it is hard to see upon what general principle he can be allowed interest. Interest is allowed for the detention of money, when it should have been paid; or for the purchase-money of land, when the possession of it has passed to the vendee, or when one has derived a benefit from another's money; but it is submitted no case can be found of a vendor, remaining in possession and in use of land, who has sued for the specific performance, recovering the purchase-money with interest: Fasholt v. Reed, 16 S. & R. 268 (1827); Kester v. Rochel, 2 W. & S. 371 (1841); Miller v. Bank of New Orleans, 5 Whart. 505 (1840). Besides, it is against the express authority of Stewart v. County, 2 Barr 340.
Jos. P. Loughead, for defendant in error.—The mistake of the counsel for the city is in supposing that the Act of the 13th of May 1856 had any relation to this case. Petitioners under the general road laws have no right to sue; but at the end of a year, if they are not paid, all the proceedings are at an end, and they are not troubled with an apprehension, like the defendant in error, that the municipal authorities will tear away their houses from over their heads, destroy their business, and turn their families into the street, whenever the city councils determine to exercise the right of eminent domain conferred upon them by the Act of 1855. To this well-founded liability, time brings no termination; for while, according to the learned counsel's argument, the right to sue is gone, the proceedings are not vacated; and years after the award, while the owner is in the full tide of successful business on his premises, he may be stopped in his pursuits, his business interrupted, if not totally destroyed, and the only recompense he gets, is the amount considered by a jury years before, adequate to the damage then, though the property taken may have doubled in value, and the damages to him be treble what they were when assessed. This 17th section of the act (quoted by the counsel as the 18th) was passed simply to remove a doubt which prevailed as to the concluding clause of the 7th section of the Act of 21st of April 1855, under which this suit was brought. By that concluding section, councils are authorized "to institute an inquiry as to persons benefited by the...
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