Commissioners v. Wood

• Decision Date: 05 March 1848
• Citation: Commissioners v. Wood, 10 Pa. 93 (Pa. 1848)
• Parties: COMMISSIONERS OF KENSINGTON <I>v.</I> WOOD.
• Court: Pennsylvania Supreme Court

10 Pa. 93

COMMISSIONERS OF KENSINGTON v. WOOD.

Supreme Court of Pennsylvania.

February 15, 1848.

March 5, 1848.

Feb. 15.

IN error from the District Court of Philadelphia.

E. D. Tarr and C. Fallon, for plaintiff in error.—The commissioners are not liable for consequential injuries to the plaintiff's land by reason of grading and paving the public streets. These are established by law, and the defendants were bound to carry out the plan: 9 W. 382; 4 W. & S. 514; 8 W. & S. 85. If, however, they are liable, clearly the offer to avoid all injury by constructing a culvert was evidence in mitigation of damages. The evidence of injury to the property occupied by plaintiff, but to which the alley was not appurtenant, was clearly inadmissible: 1 Whart. 323; 5 W. & S. 129; and it is presumed that the plaintiff comes in under the registered title (6 S. & R. 185), in which case plaintiff had but a right of dower, the estate being in her children; which is not at all inconsistent with her occupying the premises with them. The proceedings in the Quarter Sessions were evidence of a lawful appropriation of the alley to a public use: 1 Barr, 309.

V. L. Bradford, contrà.—The defendants are liable for causing a nuisance, for they are bound so to exercise their rights as not to injure private property: 4 T. R. 794; 6 Taunt. 29; 3 Willes, 461; 16 East, 215; 1 Ad. & E. 493; 3 Bing. N. C. 34; 6 C. & P. 754; 4 S. & R. 17; 1 Pick. 418. Nor was the offer to construct a sewer evidence, for until the alley was taken for public use, it could not thus be used. That it was not so taken is clear, because, until the plan of the district was recorded, it was not laid out for that purpose, and hence the subsequent proceeding to assess the damages was a nullity, especially as it was not shown that the damages had ever been paid: 2 Whart. 286. The plaintiff here did not seek to recover on the ground of title, but of occupation merely, and hence the cases cited do not apply.

March 5. ROGERS, J.

To support this action, which was for a nuisance, caused by the grading and paving of Penn street, it was only necessary for the plaintiff to prove that she was in the actual possession of the premises. If she were a mere lessee, she would be entitled to recover by reason of her occupation; though the fee was in another; and though she occupied the premises without any other title, she would be entitled to recover. In pursuance of these principles, which are undoubted, the court properly instructed the jury, that there was evidence of occupation and enjoyment to be submitted to their determination, and the jury have found that point in her favour. In what manner the damages may be distributed between the plaintiff and her children, is of little consequence to the defendant; for, if the point be as they have found, the corporation cannot be harassed with another action for the same cause. We see no reason, therefore, for reversing the judgment on that exception. If the damages are excessive, the injury can only be rectified on a motion for a new trial.

It is contended the defendants are not liable as a corporation for a consequential injury arising from grading and paving the street, according to the plan of the district: and this is the main point in the cause. The original plan was in evidence, in which an express reference is made to the alley as part of the plan. In connexion with this evidence, the defendants proposed to prove that they offered to pave the alley, and lay a pipe or culvert, or make a gutter down it, at the expense of the defendants, which was refused. This evidence, although improperly rejected, must be taken as true, in connexion with this point. It cannot be controverted, that the defendants are liable for any injury arising from the unskilful, improper, insufficient, and inartificial manner in which the work is done. This is not denied; but the defendants insist, that when they pursue the plan, and proceed in a workmanlike and skilful manner, they are not liable to consequential damages; and that, inasmuch as they offered to make the culvert, and were prevented from doing so, it is damnum absque injuria. The only question would seem to be, had they authority to pitch and pave the street in the manner they have done: — to make a gutter to carry off the water down the alley; did they offer to do so, and was that offer refused by the plaintiff? An offer to perform is equivalent to performance; and, when refused, it answers to a claim for damages. These principles are settled in Green v. Borough of...