In re Melon Street

• Decision Date: 11 October 1897
• Docket Number: 228,230,234,235,229
• Citation: 182 Pa. 397,38 A. 482
• Parties: In re Melon Street. Appeals of Jacob L. Stadelman, surviving executor and trustee, etc., William H. Bower, Sarah Ann Eleanor, Hannah R. and Camelia Eddowes, Caroline and Matilda Levering and Harriet Perkins
• Court: Pennsylvania Supreme Court

38 A. 482

182 Pa. 397

In re Melon Street. Appeals of Jacob L. Stadelman, surviving executor and trustee, etc., William H. Bower, Sarah Ann Eleanor, Hannah R. and Camelia Eddowes, Caroline and Matilda Levering and Harriet Perkins

Nos. 228, 229, 230, 234, 235

Supreme Court of Pennsylvania

October 11, 1897

[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]

Argued: January 20, 1897

Appeals, Nos. 228, 229, 230, 234 and 235, by Jacob L. Stadelman et al., from judgment of Superior Court, reversing judgment of Q.S. Philadelphia Co., confirming report of viewers.Reversed.

Appeal from judgment of Superior Court.

The facts appear by the opinion of the Supreme Court.See1 Pa.Super. 63.

Error assigned among others was in reversing judgment in the court of quarter sessions.

It was error on the part of the jury to include in their awards damages caused by the vacation of a part of Ninth street.As suggested in the opinion of the Superior Court, this error may now be corrected by the filing of releases.The judgments are reversed and the records are remitted to the court of quarter sessions of Philadelphia with direction to enter judgments for the appellants upon the filing of proper releases.

M. Hampton Todd, with him Frank M. Cody and William H. Staake, for appellant, Jacob L. Stadelman.-- The court has jurisdiction to determine the questions raised: Act of June 24, 1895, P.L. 212;Miller v. Nicholls,4 Wheat. 311;Chicago Life Ins. Co. v. Needles, 113 U.S. 574.

This case is identical with Mellor Ex'r et al. v. The City of Philadelphia,160 Pa. 614, and is ruled by the principles laid down in that case: Heydon's Case, 3 Coke'sRep. 7;Com. v. Clark, 7 W. & S. 133;Monongahela Nav. Co. v. Coons, 6 W. & S. 114;O'Connor v. Pittsburg,18 Pa. 189;Pusey v. Allegheny,98 Pa. 522;Penna. R.R. v. Lippincott,116 Pa. 472;Marchant v. Penna. R.R.,119 Pa. 541;Miller v. Wilson,24 Pa. 114;Palmer v. Silverthorn,32 Pa. 65;Com. v. Passmore, 1 S. &R. 217;Seely v. Alden,61 Pa. 302;Duffield v. Rosenzweig,144 Pa. 520;Paul v. Carver,24 Pa. 207.

For a state to depreciate the value of the property of a citizen by agencies which at common law would have sustained an action between private individuals without making compensation is a deprivation of property inhibited by the constitution of the state and the constitution of the United States: Hare's American Constitutional Law, 357;Pumpell v. Green Bay Company,13 Wallace, 166;Baltimore & Potomac R.R. v. Fifth Baptist Church,108 U.S. 317;Columbia Delaware Bridge Co. v. Geisse,35 N.J.L. 558;West River Bridge Co. v. Dix, 6 Howard, 507.

William W. Porter, with him Frederick J. Geiger, George Q. Horwitz and Edward Brooks, Jr., for appellant, William H. Bower.-- Where access to private property has been interfered with or destroyed, by the vacation of a street in Philadelphia, and there has been a consequent depreciation in the value of the property, the owner is entitled to compensation therefor: Paul v. Carver,24 Pa. 207;McGee's App., 114 Pa. 470;Howard Street, 142 Pa. 601;Appeal of Phila. & R. Terminal R.R., etc., Co., 1 Pa.Super. 63;Act ofApril 21, 1858, sec. 6, P.L. 386;Snyder v. City of Lancaster, 20 W.N.C. 184.

If it appears from the report and the record of the proceedings that the party against whom the damages are assessed is the owner of land benefited by the vacation, every requirement of the act will have been strictly complied with: Centre Street, 115 Pa. 247;Mt. Pleasant Boro. v. Balt. & O.R.R.,138 Pa. 365;Phila. v. Phila. & Reading R.R., 177 Pa. 292.

Edward Shippen, for appellants, Sarah A. Eddowes et al.

John G. Lamb and Thomas Hart, Jr., for appellee.-- The only two reported cases in Pennsylvania of proceedings to assess damages for the vacation of a street are Centre St., 115 Pa. 247, andHoward St., 142 Pa. 601.Hare v. Rice,142 Pa. 608, is a part of the same case, and inquiry at the office of the court of quarter sessions reveals the fact that so far as it is within the knowledge of the person in charge of the road dockets there, and from a search made by them, no other proceedings for assessment of damages caused by a vacation of a street had, before the present proceeding, been brought.The cases of Centre Street and Howard Street do not conclude the question.

The fact that the person assessed is the owner of property which is benefited must appear.In this case the Philadelphia and Reading Terminal Railroad Company which is assessed must appear to own land which is benefited: Phila. v. Phila. & Reading R.R.,177 Pa. 292;Allegheny City v. West Pa. R.R.,138 Pa. 375;Morewood Avenue, 159 Pa. 20; 54th Street, 165 Pa. 8;Park Avenue Sewers, 169 Pa. 433;Witman v. Reading, 36 W.N.C. 528.

An assessment against property which is not shown to be benefited, and an assessment against property which is said to be benefited, but which is not upon the line of the improvement, are equally bad.

In the petition filed in this case there is not a word about the vacation of Ninth street.The petitioners claim damages wholly upon account of the vacation of the part of Melon street.

Under a petition claiming damages for the vacation of one street, damages for the vacation of some other street, even though it may be connected with the former, cannot be recovered: Elliott on Roads and Streets, 253;Bean's Road, 35 Pa. 280;Road in Lower Merion, 58 Pa. 66;Road in Ross Twp., 36 Pa. 87;Chartiers Twp. Road, 48 Pa. 314;Lawrence v. Phila.,154 Pa. 20;Mellor v. Phila., 160 Pa. 614.

That damage of the kind alleged here is not such special damage, has been decided many times in this state in cases arising from obstruction in streets: Black v. Phila. & Reading R.R.,58 Pa. 249;Cox v. P., W. &B.R.R. Co., 10 W.N.C. 552;Heffner v. Com.,28 Pa. 108;Buck Mountain Coal Co. v. Lehigh C. & Nav. Co.,50 Pa. 91;Sparhawk v. Pass. Ry.,54 Pa. 401;Gold v. City of Phila.,115 Pa. 184;Dooner v. Penna. R.R.,142 Pa. 36;P.R.R. Co. v. Duncan,111 Pa. 352;Hobson v. City,155 Pa. 131;Jones v. R.R.,151 Pa. 30;Knowles v. R.R.,175 Pa. 629;Hughes v. Heiser, 1 Binney, 463;Penna. & Ohio Canal Co. v. Graham,63 Pa. 290;Pierce v. Dart, 7 Cowen, 609;Higbee v. C. &A.R.R., 19 N.J. Ch. 278;Shaubut v. R.R., 21 Minn. 502.

The very question presented in this case has been decided in a number of other states where claims for damages were made because of the lawful vacation of streets; and where the provisions, as to payment of damages occasioned thereby, were at least as broad as those of the act of 1858, and in which cases, evidence was either given or offered to show that there was an actual depreciation in the value of real property in consequence of the vacation: Coster v. Mayor, &c. of Albany,43 N.Y. 399;Kimball v. Commissioner,74 Mich. 699;Gerhard v. Commissioners,15 R.I. 334;Whitsett v. Union Depot & R.R.,10 Colo. 243;City of East St. Louis v. O'Flynn,119 Ill. 200;City of Chicago v. Bldg. Assn.,102 Ill. 379;Commr's of Highways v. Quinn, (Ill. Sup. Ct.) 33 Am. & Eng. Corp. Cases, 463, Bailey v. Culver, 12 Mo.App. 175;Glasgow v. City of St. Louis,17 S.W. Repr. 143;Smith v. Boston,7 Cush. 254;Davis v. Comm'rs,153 Mass. 218;Kean v. Elizabeth,54 N.J.L. 462;Kings Co. Fire Ins. Co. v. Stevens,101 N.Y. 411;Lewis on Eminent Domain, sec. 134;Mills on Eminent Domain, sec. 318;24 Am. & Eng. Ency. of Law, 120.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE FELL:

These appeals were taken from judgments of the Superior Court without special allowance, on the filing of an affidavit that the cases involved the construction or application of the constitution of this state.It does not appear from the record that any constitutional question is raised, and an appellant cannot be permitted to decide for himself whether he is entitled to an appeal without allowance.Unless it clearly appears from the record that the cases come within one of the exceptions named in the seventh section of the act creating the Superior Court there must be an allowance of the appeal, and the petition therefor should set forth clearly and specifically what constitutional question is involved and in what manner it is raised.As however the question of practice is new and has not been provided for by rule, and as the cases are of public importance and the judgments were rendered by a divided court, we overrule the motion to quash, and will consider the appeals as if before us by allowance of this court.

The proceedings in the quarter sessions were under the sixth section of the Act of April 21, 1858, P.L. 386, which places the owner of land in Philadelphia which has been injured by the vacation of a street upon the same footing to claim damages as the owner of land which has been injured by the opening or widening of a street: Hare v. Rice,142 Pa. 608.This act was said by MITCHELL, J., in the opinion In re Vacation of Howard Street,142 Pa. 601, to extend the system long established in Philadelphia for the assessment of benefits for local improvements and the application of the money so raised to compensate others whose property has been taken, to consequential injuries caused by the vacation of streets, and to anticipate the provision of the new constitution which secures compensation for consequential damages where property has been injured.Before the adoption of the new constitution the commonwealth was under no obligation to make compensation for damages caused by the vacation of streets: Paul v Carver,24 Pa. 207.And for the purpose of this argument it may be conceded that since its adoption no such duty is imposed by the provision that compensation shall be made for...