Hoffer v. Reading Co.
| Decision Date | 26 June 1926 |
| Docket Number | 22 |
| Citation | 134 A. 415,287 Pa. 120 |
| Parties | Hoffer v. Reading Co., Appellant |
| Court | Pennsylvania Supreme Court |
Argued May 25, 1926
Appeal, No. 22, May T., 1926, by defendant, from judgment of C.P. Dauphin Co., Commonwealth Docket 1925, No. 7, sustaining order of Public Service Commission, awarding damages, in case of Edwin M. Hoffer, Trustee, v. Reading Company. Reversed.
Appeal from order of Public Service Commission. Before WICKERSHAM J.
The opinion of the Supreme Court states the facts.
Judgment for Edwin M. Hoffer, Trustee, for $2,659.59. Defendant appealed.
Error assigned was, inter alia, judgment, quoting it.
The judgment is reversed, and the record is remitted with directions to enter judgment for the defendant.
John T Brady, for appellant. -- In the absence of legislation providing for compensation, there can be no recovery for damages occasioned by a mere change of grade of a public road: State Highway Route No. 72, 71 Pa.Super. 85; Jamison v. Cumberland County, 234 Pa. 621; Herrington's Petition, 266 Pa. 88; Holmes v. P.S.C., 79 Pa.Super. 381; Oxford St., 79 Pa.Super. 106.
The public service company law, authorizing the Public Service Commission to assess damages for property taken, injured, or destroyed in connection with the abolition of a railroad grade crossing, did not create any new right in an abutting property owner to recover for a mere change in the grade of a state highway made by the State Highway Department in accordance with the terms of the order of the commission: Knoll v. Harborcreek Twp., 86 Pa.Super. 423, 14 Pa. Corp. R. 1; Donnelly v. P.S.C., 268 Pa. 345.
John McI. Smith, with him Herbert A. Schaffner, for appellee. -- Appellee concedes that, in the absence of statutory or constitutional authority providing for compensation, there can be no recovery for damages occasioned by a mere change of grade of a state highway made by the secretary of highways under state highway legislation.
Appellee having been deprived of practically all access to his property is entitled to damages regardless of change of grade legislation.
Appellant, being a private corporation, and having been made liable for consequential damages in this proceeding, cannot escape liability because of the alleged lack of statutory authority to assess such damages against a second-class township: Walnut Street Bridge Case, 191 Pa. 153; Sebree v. Water Supply Co., 72 Pa.Super. 553.
The public service company law, together with the General Township Act of 1917, provides a complete method of elimination of crossings in townships of the second class, including the right to damages and the method of determination thereof: Erie R.R. v. Utility Commissioners, 254 U.S. 394; Spang v. Com., 281 Pa. 414.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Upon application by the State Highway Department, five grade crossings along the William Penn Highway, in the County of Dauphin, were abolished by order of the Public Service Commission. The former thereupon graded and constructed the roadbed, passing it under the tracks of the Reading Company, near Swatara Station. As directed by the commission, the entire cost of the subway, within its right-of-way, was paid by the railroad, no portion of the work beyond being undertaken by it, except the building of two retaining walls to the east, a consideration not important in the determination of this proceeding. In approaching the underground passage, the road officials reduced the grade of the highway, not, however, altering the existing center or side lines. As a result of the improvement there was a cut where the road passed through the land of Hoffer, trustee, the present plaintiff, from the old grade, at a point near the southwest corner of his land, to the bed beneath the railroad tracks, gradually descending to a depth of eight feet. The result was to make entrance into the abutting property difficult, except at the upper end.
The Public Service Commission directed that, in addition to the cost of the new subway, the railroad should pay all consequential damages which might be occasioned by the reconstruction of the adjoining highway, made necessary so that traffic might pass through it. Against the latter's protest, the petition of plaintiff, asking compensation for the loss sustained by the change of grade, was allowed, and an award made in his favor. The defendant company intervened and appealed, and the question of its liability for the damages assessed was submitted to the court of common pleas for decision. No facts were in dispute, and it was agreed by all parties that the proceeding before the commission had been initiated by the highway department, which undertook the actual grading and building of the road, -- the center and side lines of the old highway, located in a township of the second class, not being altered, -- and that the subway was built at the expense of the railroad entirely within its right-of-way, except as above noted. The learned court below was of opinion that the property damage occasioned by the alteration of grade was compensable, and under the terms of the Public Service Act, was chargeable by the commission to defendant. Judgment was entered against it for $2,659.59, a sum which included interest from the date of the original award, as stipulated by the parties. This amount is determinative of the question of the appellate jurisdiction, and made necessary a review here, if any was demanded. The suggestion of defendant that the appeal should have been taken to the Superior Court, because of the amount involved, is without merit.
The right to recover for damages occasioned by change of grade of a state highway so as to provide an approach to a new subway, and, if so, whether this burden can be placed upon the railroad which abolished the former grade crossing as directed, are the questions now presented. The Constitution of 1874 (art. XVI, sec. 8) requires corporations and individuals invested with the privilege of appropriating property for public use to make or secure compensation for the rights taken, injured or destroyed, but this provision has no application to the occupation of land for public highways, or for consequential injury arising therefrom. In the absence of legislative allowance, no recovery is permissible in such case, for the claim is one of grace, and not of right: State Highway Route No. 72, 265 Pa. 369. Unless liability is expressly imposed by statute, the abutting owner cannot secure an award, though damage results from a change in grade, and the Commonwealth has, therefore, been held not liable where the bed of a state highway was raised or lowered: State Highway Route No. 72, supra, affirming 71 Pa.Super. 85; Spang & Co. v. Com., 281 Pa. 414. Likewise, no recovery was permitted against a county for such change (Jamison v. Cumberland County, 48 Pa.Super. 32, affirmed, 234 Pa. 621; Wangner v. Bucks County, 82 Pa.Super. 448), nor against a township of the first class (Herrington's Petition, 266 Pa. 88), or second class (Wagner v. Salzburg Township, 132 Pa. 636), and the same rule has been applied where roads were vacated: Saeger v. Com., 258 Pa. 239. By legislation, liability, in certain cases of change of grade or vacation, is provided for (Acts May 28, 1913, P.L. 368; June 27, 1913, P.L. 633; Hedrick v. Harrisburg, 278 Pa. 274; Donnelly v. Pub. Ser. Com., 268 Pa. 345), and a like requirement now applies to townships of the first class, where the grade of a road is altered (Township Code July 14, 1917, P.L. 840, section 485; In re: Oxford Street, 79 Pa.Super. 106), though not to those of the second class, such as here involved: Township Code, supra, sec. 640. By section 726, the latter are made...
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