Howley v. City of Pittsburg

• Decision Date: 05 January 1903
• Docket Number: 72
• Citation: 54 A. 347,204 Pa. 428
• Parties: Howley v. Pittsburg, Appellant
• Court: Pennsylvania Supreme Court

54 A. 347

204 Pa. 428

Howley v. Pittsburg, Appellant

No. 72

Supreme Court of Pennsylvania

January 5, 1903

Argued October 29, 1902

Appeal, No. 72, Oct. T., 1902, by defendant, from judgment of C.P. No. 3, Allegheny Co., May T., 1900, No. 55, on verdict for plaintiff in case of Nellie G. Howley v. Pittsburg. Affirmed.

Appeal from award of viewers.

From the record it appeared that the grade of Beacon street was established on January 6, 1896, and an ordinance authorizing and directing the actual work of grading was approved on July 13, 1896; and a contract in accordance with said ordinance was awarded for the work of grading on June 14, 1897, and approved by councils on July 21, 1897. The work was begun on August 10, 1898, and completed on June 7, 1899. After the time of the passage of the various ordinances relating to this street, including the ordinance for the grading of the street, and after the contract for the same had been let, but before the work of grading had actually begun, the plaintiff Nellie G. Howley, acquired title to a tract of ground fronting about 400 feet on Beacon street.

Viewers appointed at the instance of the city refused the plaintiff damages and assessed benefits against her in the sum of $321.65. Nellie G. Howley appealed from the award of the jury of view. At the trial of the issue, William G. Howley, a witness for plaintiff, was asked this question:

"Q. Tell us what amount of damage has been sustained by this property by reason of the grading of the street, with reference to the time immediately after the grading was completed."

Objected to for the reason that under the evidence, Mrs. Howley did not become the owner of that property until December 33 1897, and the ordinance for actual grading of the street, according to the evidence here, was passed and approved July 13, 1896. Mrs. Howley, therefore, was not the proper party to claim damages in this proceeding for that property.

The Court: Objection overruled.

To which ruling of the court, counsel for defendant excepted. Exception allowed and bill sealed. [1]

The Court: "Q. What was the difference between the market value before this work was done and immediately after? A. I would consider it was about $10,000."

Verdict and judgment for plaintiff for $4,000. Defendant appealed.

Errors assigned were (1, 2) ruling on evidence, quoting the bill of exceptions; (3) refusal of binding instructions for defendant.

The judgment is affirmed.

A. M. Thompson, assistant city solicitor, with him T. D. Carnahan, city solicitor, for appellant. -- The acts of the city in this case, prior to plaintiff's purchase, have the same effect as an opening ordinance: Act of May 26, 1891, P.L. 117; King v. Philadelphia Co., 154 Pa. 160; Witman v. Reading, 191 Pa. 134; Shields v. Pittsburg, 201 Pa. 328; Steel v. Huntingdon Borough, 191 Pa. 627.

For the purpose of the assessment of damages or benefits, that should be treated as done, which the municipality orders to be done: Campbell v. Philadelphia, 108 Pa. 300; In re Grape St., 103 Pa. 121; Philadelphia v. Wright, 100 Pa. 235.

E. G. Ferguson, with him E. J. Kent and J. S. Ferguson, for appellee. -- This court has uniformly held that damages arising from the grading of a street accrue when the work is done on the ground and belong to him who is the owner of the abutting property at the time of the actual grading: Jones v. Borough of Bangor, 144 Pa. 638; Allegheny City v. King, 18 Pa.Super. 182; Ogden v. Philadelphia, 143 Pa. 430; O'Brien v. Philadelphia, 150 Pa. 589; Philadelphia Ball Club v. Philadelphia, 192 Pa. 632; Borough of Easton v. Walters, 18 W.N.C. 117; Borough of Freemansburg v. Rodgers, 8 A. 872; Borough of New Brighton v. Peirsol, 107 Pa. 280; In re Liberty Township Road, 23 Pa. C.C. Rep. 287; Clark v. Philadelphia, 171 Pa. 30.

The act of May 16, 1891, introduced no new rule for the measure of damage in the grade of streets. Before that act the viewers reported findings as to both benefits and damages in a single sum. Under the act of 1891 they report both matters separately, but the net result is the same: Dawson v. Pittsburg, 159 Pa. 317.

Before MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE FELL:

The assignments raise the single question whether an owner of land who acquired title after the passage of an ordinance authorizing the grading of a street can recover for the injury to his property caused by the grading. The rule established by our decisions is that it is the physical change and not the mere establishment of a grade on the official plans that gives a right of action, and that no damages are recoverable for a change of grade until the actual work on the ground is begun: In re Plan 166 143 Pa. 414; Ogden v. Philadelphia, 143 Pa. 430; Clark v. Philadelphia, 171 Pa. 30; Philadelphia Ball Club v....