Donnelly v. Public Service Commission of Pennsylvania R.R. Co.

• Decision Date: 31 December 1920
• Docket Number: 166
• Parties: Donnelly v. Public Service Commission and Pennsylvania R.R. Co., Appellant
• Court: Pennsylvania Supreme Court

112 A. 160

268 Pa. 345

Donnelly v. Public Service Commission and Pennsylvania R.R. Co., Appellant

No. 166

Supreme Court of Pennsylvania

December 31, 1920

Argued September 30, 1920

Appeal, No. 166, Oct. T., 1920, by Pennsylvania R.R. Co. from judgment of C.P. Armstrong Co., Sept. T., 1919, No. 72 on verdict for plaintiff in case of Mary Donnelly v. Public Service Commission and the Pennsylvania Railroad Co., Intervener. Affirmed.

Appeal by Mary Donnelly from assessment of damages by the Public Service Commission for property taken, injured or destroyed in the construction, relocation and abolition of grade-crossings, or the vacation or partial vacation of First street in the Borough of Freeport. Before KING, P.J.

The Pennsylvania Railroad Co. was permitted by an order of court to intervene as a defendant. An issue was framed, and at the trial a verdict was rendered for the plaintiff for $2,045, on which judgment was entered. The Pennsylvania Railroad Co. appealed.

The opinion of the Supreme Court states the facts.

Error assigned was order refusing judgment for defendant.

The judgment of the court below is affirmed.

H. A. Heilman, with him G. C. Christy, for appellant. -- The railroad company owning the land in fee, within its right-of-way lines, including that part of First street in the Todd plan of lots occupied by the Pennsylvania canal can put the property to reasonable use, without liability for damages: Phila. & Reading R.R. Co. v. Yeiser, 8 Pa. 366; New Castle, etc., R.R. v. McChesney, 85 Pa. 522; Penna. R.R. v. Lippincott, 116 Pa. 472; Philips v. R.R., 184 Pa. 537; Penna. R.R. v. Marchant, 119 Pa. 541; Wunderlich v. P.R.R., 223 Pa. 114; Ridgway v. P. & R. Ry., 244 Pa. 282.

No claim for damages to property can be allowed because of the vacation in whole or in part of a public highway unless the property damaged abuts on that portion of the street actually vacated: Mt. Pleasant Ave. App., 171 Pa. 38; Howell v. Morrisville Boro., 212 Pa. 349; Com. v. Miller, 47 Pa.Super. 193; Melon St., 182 Pa. 397; Phila. v. Conway, 257 Pa. 172.

No damages will be allowed a property owner for vacation of a street unless such vacation shuts off the property from the general system of streets: Edgemont Street, 66 Pa.Super. 142; Ruscomb St., 33 Pa.Super. 148; Howell v. Morrisville Borough, 212 Pa. 349.

C. E. Harrington, with him C. L. Wallace, for appellee. -- This case is governed exclusively by the Public Service Law: Hare v. Rice, 142 Pa. 608; Umbria St., 32 Pa.Super. 333; Mellor v. Phila., 160 Pa. 614; Cooper v. Scranton City, 21 Pa.Super. 17; Chatham St., 191 Pa. 604; Lewis v. Homestead Boro., 194 Pa. 199.

Damages will be allowed a property owner for the vacation and closing of a public street which leaves said property at the end of a cul-de-sac: Melon St., 182 Pa. 397.

Before BROWN, C.J., STEWART, MOSCHZISKER, FRAZER, WALLING and SIMPSON, JJ.

OPINION

MR. JUSTICE SIMPSON:

The only errors alleged in this case are that the court below erred in not giving binding instructions for defendant, and in not entering judgment in its favor non obstante veredicto. "Under these circumstances all the evidence and inferences therefrom favorable to plaintiff must be taken as true, and all unfavorable to him, if depending solely upon testimony, must be rejected": Wiles v. Emerson-Brantingham Co., 267 Pa. 47, 49. Viewed in this light, the proofs, though covering a long period of time, are not perplexing, and the law applicable thereto, though interesting and important, is not intricate or difficult of application. The following are the essential facts established in accordance with the rule stated.

In 1797 David and William Todd, owning a tract of land, now forming the Borough of Freeport, divided it into building lots and sold them as fronting on certain streets appearing on the plan of the improvement. One thereof was First street, and the property fronting thereon now owned by plaintiff -- the alleged injury to which is the cause of this litigation -- was purchased by her predecessor in title directly from the Todds according to the plan. By the Act of February 25, 1826, P.L. 55, the canal commissioners of the State were authorized to and thereafter did open a branch canal, inter alia, through said property, crossing First street and all the other streets which ran in a north and south direction. The canal was operated while the weather was warm enough for the purpose, but when the possibility of freezing arose, the water was drained off and so remained until the danger was past. There was no bridge across it at First street, and those who desired to travel over it while it was full, did so by boat; but after it was emptied, a passageway was planked and people drove or walked over it at pleasure until the canal was again filled. This situation continued until 1857, when the Pennsylvania Railroad Company purchased from the State the bed of the canal, graded and laid railroad tracks thereupon, and at First street planked the space between the outside rails of the two tracks, so that those using the street could safely pass over. The rest of the street was kept in order by the Borough of Freeport, after its incorporation in 1833. So far as appears from this record, from 1857 to 1915, there never was any challenge of the right of the public to cross the tracks as a part of First street.

In the latter year the railroad company purchased additional property fronting on the street, and entered into negotiations with the borough officials -- who acted under an ordinance passed for the purpose -- resulting in a contract by which the borough agreed to vacate First street where it crossed the railroad, and the company agreed to elevate its tracks (which were to be increased to four), so as to get rid of the grade crossings in the borough, and further to pay all expenses and assume all liability arising by reason of the vacation of the street. The contract was approved by ordinance and duly executed. Attached to it was a plan which showed First street as a public street crossing the railroad's right-of-way at grade, as did also both ordinances. Following this, as required by the Public Service Company Law, the borough and the railroad company applied for and obtained the approval of the Public Service Commission, the petition having attached thereto the contract and plan of the improvement. The borough then vacated the street, and the railroad company built concrete retaining walls about eighteen feet high, on each side of its present right-of-way, thereby closing the street to public travel; the width of the structure being much greater than was the canal with its berm banks, towing path and slopes.

Plaintiff and others thereupon applied to the commission to ascertain and determine the amount of damages caused to their properties by the vacation of the street and the elevation of the railroad, hearings were had and an award made in favor of plaintiff. From this award she appealed to the court of common pleas, and, with the consent of the parties, an issue was formed to determine the amount of damages suffered by her in excess of benefits "for property taken, injured or destroyed in the construction, relocation and alteration or abolition of said grade crossings, the elevation of the railroad tracks or the vacation or partial vacation" of First street, the verdict to "also include all elements of damages submitted to and passed upon by the Public Service Commission." Under this, plaintiff had the right to recover not only the damages to which she would have been entitled in a proceeding against the borough, but also any sum for which the railroad company was liable to her. From the judgment entered on a verdict in her favor, defendant prosecutes this appeal; and by stipulation filed agrees it will not "argue or present any questions affecting the regularity and jurisdiction of proceedings by the claimant before the Public Service Commission, or the right of claimant to appeal to the court of common pleas from the decision" of the commission. The specific objections now made, and the only questions necessary to consider, are whether or not defendant was entitled to judgment, as a matter of law, because, as is alleged: (1st) It had the legal right, without liability, to elevate its tracks on that part of its right-of-way which it had purchased in fee from the State; and (2d) Plaintiff suffered no legal damage since the street was not vacated immediately in front of her property.

As defendant obtained the contract with the borough and the...