Knowles v. Pennsylvania R. Co.

• Decision Date: 28 May 1896
• Docket Number: 403
• Parties: Lynford Knowles v. The Pennsylvania Railroad Co., Appellant
• Court: Pennsylvania Supreme Court

34 A. 974

175 Pa. 623

Lynford Knowles v. The Pennsylvania Railroad Co., Appellant

No. 403

Supreme Court of Pennsylvania

May 28, 1896

Argued January 13, 1896

Appeal, No. 403, Jan. T., 1895, by defendant, from judgment of C.P. No. 4, Phila. Co., June Term, 1892, No. 859, on verdict for plaintiff. Affirmed.

Trespass to recover special damages caused by the obstruction of a highway. Before WILLSON, J.

The facts appear by the opinion of the Supreme Court.

The plaintiff offered to prove that at the time that this fence was put up he was carrying on the business of a contractor in that part of the city of Philadelphia, and in consequence hauled a great number of loads of dirt from the west side of the railroad to the east side of the railroad, in pursuance of his lawful calling; and that after the fence was put up that traffic was virtually destroyed, and in consequence of that he lost a large sum of money, which he will be able to show by the evidence.

Objected to, because that is not the subject of compensation in this proceeding, and is irrelevant. Objection overruled Exception for defendant. [1]

The court charged in part as follows:

[I say to you without qualification that I see nothing in the evidence here which justified the defendant company in erecting the fence across the Tacony road, as you heard it was erected.]

Defendant's points were as follows:

1. That the defendant had the right to raise its roadbed to conform to the revision of grades authorized by the ordinance of March 21, 1887, and is not liable for any damages incident March 21, 1887, and is not liable for any damage incident thereto. Answer: I refuse the point as not applicable to the case as it stands before me upon the evidence. [3]

2. That the alleged injury arising from a change of grade at Princeton and Cottman streets obliged the plaintiff, if there be any damage, to have recourse to the city for compensation. Answer: I refuse the point as not applicable to the case as it stands before me upon the evidence. [4]

Verdict and judgment for plaintiff for $1,500. Defendant appealed.

Errors assigned were (1) ruing on evidence, quoting the bill of exception; (2-4) above instructions, quoting them.

Judgment affirmed.

David W. Sellers, for appellant. -- The plaintiff was inconvenienced in the use of Tacony road as other people were; the same kind, though it may have been different in degree: Heffner v. Com., 28 Pa. 108; Gold v. Phila., 115 Pa. 184; Railroad v. Patterson, 107 Pa. 461.

Thomas Hart, Jr., filed a paper-book for appellant by special leave of the court. -- The primary question presented is whether, supposing this to be a case of admitted obstruction of a highway by the erection of a fence across the same, a property owner on the highway outside of the obstruction, whose access to the highway in front of his own property is not at all cut off thereby, but the effect of which obstruction is simply to oblige him to pursue a circuitous and inconvenient route to reach a point, which previously he had reached by a direct way along the obstructed part of the highway, suffers such damage as enables him to recover. The damage suffered in this case is not a damage different in kind from that of other citizens having a right to use the obstructed highway: Black v. Phila. & Reading R. 58 Pa. 249; Cox v. P.W.B.R.R., 10 W.N.C. 552; Cox's App., 11 W.N.C. 571; Buck Mountain Coal Co. v. Leh. C. & Nav. Co., 50 Pa. 91; Sparhawk v. Pass. Ry., 54 Pa. 401; Dooner v. Penna. R.R., 142 Pa. 36; Duncan Case, 111 Pa. 352; Hobson v. City, 155 Pa. 131; Jones v. R.R., 151 Pa. 30; Pierce v. Dart, 7 Cowen, 609; Lansing v. Smith, 8 Cowen, 146; Seely v. Bishop, 19 Conn. 135; Higbee v. C.A.R.R., 19 N.J. Ch. 278; Blood v. N. & L.R.R., 2 Gray, 137; Harvard College v. Sterns, 15 Gray, 1; Brayton v. Fall River, 113 Mass. 218; Blackwell v. R.R., 122 Mass. 1; Shaubut v. R.R., 21 Minn. 502; Brakkin v. R.R., 29 Minn. 41; Bigley v. Nunan, 53 Cal. 403; Osborne v. Brooklyn City R.R., 5 Blatch. 366; Fritz v. Hobson, L.R. 14 Chanc. Div. 543; Iveson v. Moor, 12 Mod. 262; Benjamin v. Storr, L.R. 9 C. 400; Lyon v. Fishmongers' Co., L.R. 1 App. Cas. 622.

Hughes v. Heiser, 1 B. 463, cited by appellee, is a direct authority for appellant. The obstruction of the river was a dam which prevented rafts from passing down, and, of course, there was no other way of getting down; it was therefore a clear case of special damage. The case of Stetson v. Faxson, 19 Pick. 147, has been modified by more recent Massachusetts cases.

The following cases cited in appellee's brief, Houck v. Pipe Line, 153 Pa. 306; Robb v. Carnegie, 145 Pa. 324; Collins v. Chartiers Gas Co., 139 Pa. 111; Peiffer v. Brown, 165 Pa. 267, have no applicability to this case. This is not a case in which the rights of adjoining owners of land are involved, and in which the duties of one landowner to another landowner are made the basis of the cause of action.

Thomas A. Fahy, for appellee. -- In reply to Mr. Sellers; the plaintiff suffered such special damages as entitled him to recover in this case: Hughes v. Heiser, 1 Binney, 463; Stetson v. Faxon, 19 Pick. 147; Year Book, 27 H. 8, pl. 10; Maynell v. Saltmarsh, 1 Keb. 847; Chichester v. Lethbridge, Willes, 71; Iveson v. Moore, 1 Ld. Raym. 491; Rose v. Miles, 4 M.& S. 101; Greasly v. Codling, 2 Bingh. 263; Mayor v. Henley, 1 Bingh. New Cases, 222; Robb v. Carnegie, 145 Pa. 324; Pfeiffer v. Brown, 165 Pa. 267.

Where a corporation is clothed with the right of eminent domain, and is expressly authorized by law to construct its works operate them, any injury resulting from such operation, without negligence and without malice, is damnum absque injuria, yet where a corporation has no right of eminent domain the operation of its works causing consequential injuries to another is a nuisance: Hauck v. Pipe Line Co., 153 Pa. 366. See also Robb v. Carnegie, 145 Pa. 234; Collins v. Chartiers Gas Co., 139 Pa. 111; Peiffer v. Brown, 165 Pa. 267.

In reply to Mr. Hart; that the plaintiff did in fact sustain special damage is established by the verdict of the jury; and that it was of a kind and degree differing from that sustained by the public at large is established by the authorities already cited by appellee.

The cases cited by Mr. Hart are wide of the mark. In Black v. Railroad, 58 Pa. 249, the court found that the company had authority in its legislative grant to do the act complained of. In Cox v. Railroad, 10 W.N.C. 552, it was determined that a court of equity did not have jurisdiction. It was also shown that there was no special damage. In Dooner v. Railroad, 142 Pa. 36, and Jones v. Railroad, 151 Pa. 30, the erection was lawful. In Hobson v. City, 155 Pa. 131, the municipality had obstructed a street.

If it be said that all who passed over the highway had an equal right of way with plaintiff, yet all who passed were not building contractors and had not made the use of the highway a pecuniary element in contracts for hauling dirt thereover.

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

OPINION

MR. JUSTICE McCOLLUM:

The defendant company contends that if the plaintiff has sustained any damage by reason of its erection and maintenance of the fence across Tacony road he must "have recourse to the city for compensation" for it. This contention appears to be based on the theory that the obstruction complained of was incident to the work of raising its roadbed to conform to the revision of grades authorized by the ordinance of March 31, 1887, and that for damage done in the proper performance of such work the company is not responsible. But it is obvious that the question whether the company or city is liable for the damage caused by the company's elevation of its roadbed in accordance with the revision of grades is not in this case. The fence was erected by the company across Tacony road on the 14th of December, 1891, and it was maintained there until the latter part of October, 1893, when the company removed it and for five months thereafter the public used the highway as it had done before the erection of the fence. The work of elevating the company's roadbed at the point where the same was crossed by the Tacony road was not begun until April, 1894, two years and three months after the erection of the fence. It is obvious therefore that the obstruction complained of in this case had no connection with the revision of grades or the elevation of the roadbed. It was not authorized by the ordinance of March 31, 1887, nor by any action of the city thereunder. It was, by the company's own confession in removing it, as needless and unwarranted at any time before April, 1894, as it would have been if erected at any time before December 14, 1891. It was clearly an unlawful obstruction and the company's liability for the damage caused by it is not affected by "a change of grade at Princeton and Cottman streets," nor by "the revision of grades authorized by the ordinance of March 31, 1887." For the reasons above stated the case in hand cannot be likened to the case of an obstruction caused or made necessary by the work of elevating the roadbed under the arrangement between the company and the city. We therefore overrule the second, third and fourth specifications of error.

The important question in the case is whether the plaintiff has sustained such loss or damage in consequence of the obstruction of the highway as will support his action against the wrongdoer. "A private action for a public nuisance is maintainable by one who suffers therefrom some particular loss or damage beyond that suffered by him in common with all others affected by the nuisance. Interference with a common right does not of itself afford a cause of action by an...