Holmes v. Public Service Commission

• Decision Date: 13 July 1922
• Docket Number: 170-1922
• Parties: Holmes and Holmes v. Public Service Commission et al., Appellants (No. 2)
• Court: Pennsylvania Superior Court

79 Pa.Super. 381

Holmes and Holmes v. Public Service Commission et al., Appellants (No. 2)

No. 170-1922

Superior Court of Pennsylvania

July 13, 1922

Argued April 21, 1922

Appeal by the intervening defendant, from judgment of C.P. Armstrong Co., Sept. T., 1919, No. 83, on verdict for plaintiff, in the case of Hannah B. Holmes and J. H. Holmes, widow and heirs of J. H. Holmes, deceased, v. The Public Service Commission of Pennsylvania and Pennsylvania Railroad Company, intervening defendant.

Appeal to the court of common pleas from order of the Public Service Commission refusing to award damages to plaintiffs as abutting property owners. Before King, P. J.

The Pennsylvania Railroad Co. was permitted to intervene as a defendant. An issue was framed, and verdict rendered for plaintiffs in the sum of $ 1,500. Judgment was entered on the verdict. The Pennsylvania Railroad Co., intervening defendant, took this appeal.

The facts are stated in the opinion of the Superior Court and in preceding case.

Errors assigned were refusal to give binding instructions for the defendant and refusal to enter judgment for defendant non obstante veredicto.

H. A Heilman, for appellant. -- The Pennsylvania Railroad acquired from the State an absolute fee in the lands formerly of the canal system: Haldeman v. P.R. R. Co., 50 Pa. 425; Robinson v. West P.R. R. Co., 72 Pa. 316; Western P.R. R. Co.'s App., 99 Pa. 155.

The right of eminent domain includes the right to take over and appropriate individual and private rights of way over property taken for public use: Chambersburg Shoe Mfg. Co v. R. R. Co., 240 Pa. 519.

There can be no recovery for damages by a property owner caused by the obstruction of light and air unless the obstruction is upon his ground without right: Haverstick v. Sipe, 33 Pa. 368; Willock v. Beaver Valley R. R. Co., 222 Pa. 590; Socket v. Norristown Transit Co., 62 Pa.Super. 542.

C. E Harrington, and with him C. L. Wallace, for appellees. -- Every proposition of law raised by the intervening defendant in its cross appeal is fully answered and judicially determined in the case of Donnelly v. P.S. C., 268 Pa. 345.

The streets were dedicated to public use by having been opened and subjected to public use for nearly 70 years: P.R. R. v. Street Ry., 176 Pa. 559; Ackerman v. Williamsport, 227 Pa. 591; Com. v. Shoemaker, 14 Pa.Super. 194; Com. v. Llewellyn, 14 Pa.Super. 214; Weida v. Hanover Twp., 30 Pa.Super. 424.

Before Orlady, P. J., Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

KELLER, J.

This appeal grows out of the same improvement referred to in No. 163-1922, [the preceding case] but raises an entirely different question. By agreement with the Borough of Freeport, and with the approval of the Public Service Commission, the Pennsylvania Railroad Company elevated its tracks in said borough and, in doing so, constructed an embankment about eighteen feet high, supported by a concrete wall along either side of its right-of-way. By the terms of the agreement certain streets which formerly crossed the railroad tracks at grade were vacated, wholly or in part, within the right-of-way lines of the railroad company. See Donnelly v. P.S.C. & P.R. R., 268 Pa. 345. Certain other streets, among them Fourth Street, were not vacated at all, but the tracks were carried over them by overhead concrete slab bridges. The bridge at Fourth Street was supported by abutments located entirely on the railroad company's right-of-way and by three concrete piers or columns, two on the curb lines and one in the center of the street, which divided the street into two roadways, each about fifteen feet wide, with a sidewalk on each side about twelve feet wide, the remaining six feet being taken up with the supporting columns. Before the improvement the street was used at the railroad crossing for a width of only eighteen or twenty feet which was planked as a roadway, and without sidewalks; now it is opened for its full width of sixty feet.

The plaintiffs are the owners of a tract of land situate at the northwest corner of Fourth and Water streets, composed of parts of lots 19 and 20 as laid out on the plan of lots of William and David Todd, prior to the incorporation of said borough. It extends along Water Street ninety-nine feet and from Water Street along Fourth Street fifty-two feet, where it narrows to a width of sixty-six feet, and extends of that width northward to the right-of-way of the Pennsylvania Railroad Company, formerly the old Pennsylvania canal. A two-story brick house is located on the lot fronting on the railroad company's right-of-way, about six feet from the concrete embankment built thereon, and thirty-three feet from Fourth Street. A three-story building, the Commercial Hotel, occupies the thirty-three feet between the plaintiffs' house and Fourth Street and extends out a foot or two nearer the railroad company's right-of-way. A frame stable is built at the corner of Fourth and Water streets and occupies the whole of the plaintiffs' frontage on Fourth Street and part of said frontage on Water Street. At the hearing before the Public Service Commission, following the approval of the railroad company's plans of improvement, the plaintiffs presented a claim for damages but were denied any compensation. They thereupon demanded a jury trial and appealed to the Court of Common Pleas of Armstrong County, in accordance with the provisions of article VI, section 17, of the Public Service Company Law. On the trial of the issue framed thereunder it developed that the embankment was constructed on the railroad company's right-of-way and did not encroach on plaintiffs' land. See appeal to April Term, 1922, No. 163 [preceding case]. The trial judge submitted to the jury the questions, (1) whether the construction of the concrete bridge or overhead crossing at Fourth Street had injured the plaintiffs in a special way by obstructing the access to their property by its supporting piers or columns, and interfering with its light and air, and (2) whether the raising, grading, curbing, and paving of Water Street, in connection with the raising and grading of Fourth Street, where it intersected with Water Street, had resulted in special damage to the plaintiffs' property. Under the directions of the court the jury returned a special verdict, and found that the plaintiffs had not been injured by the raising, grading, etc., of Water Street, but that they had suffered damage by the construction of said concrete bridge or overhead crossing to the extent of $ 1,500, on which judgment was entered in favor of the plaintiffs; and from this judgment the railroad company, the intervening defendant, has appealed.

The Public Service Company Law of 1913, P. L. 1374, article V section 12, and its amendment of July 17, 1917, P. L. 1025, provide that the compensation for damages which the owners of adjacent property, taken, injured, or destroyed may sustain in the construction, relocation, alteration, or abolition of grade crossings, shall be ascertained and determined by the commission, with provisions for an appeal from its determination to the court of common pleas of the proper county. It will be noted that the term used is adjacent, -- not abutting, -- property taken, injured, or destroyed, etc. The appellees contend that this provision established a departure from the law previously in force in this State and entitles anyone whose property is near or adjacent to a grade crossing to recover the damages which a jury may award him by reason of the construction, relocation, alteration, or abolition of a grade crossing, without any rule or chart to guide them provided witnesses can be found who will testify to such damage. We do not understand that the Public Service Company Act has made any such radical departure in the law regulating damages in eminent domain proceedings, or that it has, in fact, effected any departure from the previously existing law. The Constitution of Pennsylvania, article XVI, section 8, provides that " municipal and other corporations and individuals invested with the privilege of taking private property for such use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements." The Supreme Court held that this provision of the Constitution is not limited to property merely fronting or abutting on the particular works, highway or improvement by the construction of which the property is injured or destroyed but applies to any works which are sufficiently near to the property to make the injury proximate, immediate and substantial: Mellor v. Phila., 160 Pa. 614; Chatham Street, 191 Pa. 604. The former case grew out of the abolition of a grade crossing, the latter from a change of grade of a city street. It is apparent, therefore, that the Public Service Company Act made no change in the law on this point, but simply recognized that adjacent property, -- which includes abutting property, -- might be injured by the construction, relocation, alteration, or abolition of a grade crossing and made provision accordingly. Had the act limited the right to damages to owners of abutting property it would, under the decisions above cited, have been unconstitutional in that respect. But this does not mean that the Public Service Company Law has created any extension or enlargement of the rights of adjacent property owners or that since the passage of that act they are entitled to damages to which they were not previously entitled. Just as before, the injury must be proximate, immediate and substantial in order to permit a recovery. There is nothing in the title of the Public Service Company Act which gives notice of any desire or...