Ogden v. City of Philadelphia

• Citation: 22 A. 694,143 Pa.St. 430
• Parties: OGDEN v. CITY OF PHILADELPHIA. ELLIS v. SAME.
• Decision Date: 05 October 1891
• Court: United States State Supreme Court of Pennsylvania

22 A. 694
143 Pa.St. 430

OGDEN
v.
CITY OF PHILADELPHIA.
ELLIS
v.
SAME.

Supreme Court of Pennsylvania.

Oct. 5, 1891.

Appeals from court of common pleas, Philadelphia county.

Actions by Richard T. Ogden and Margaret H. Ellis, respectively, against the city of Philadelphia, for damages for change of a street grade. Nonsuits were granted, and plaintiffs appealed. Reversed.

Joseph S. Goodbread, for appellant Ogden.

E. C. Rhoads, for appellant Ellis.

Howard A. Davis, James Alcorn, and C. F. Warwick, for appellee.

MITCHELL, J. In the absence of any opinion by the court below, we are left to gather the grounds of the nonsuit from the facts and the arguments of counsel. The facts, which do not appear to be disputed, are that the first grade for North street was established on the city plan in 1871, but nothing was done on the ground until 1887. For the establishment of the grade of 1871 there was no right of action. O'Connor v. Pittsburgh, 18 Pa. St. 187;

22 A. 695

City of Philadelphia v. Wright, 100 Pa. St. 235. Therefore the statute of limitations could not begin to run from that date. But the constitution of 1873, art. 16, § 8, gave a right to the owners to have compensation for property injured as well as for property taken by municipal and other corporations in the construction or enlargement of their works. The right of action which this section gives is clearly for the actual establishment of the grade on the land. The general rule is that the cause of action arises when the injury is complete, and this has been uniformly applied to the taker of property for public use, from the case of Navigation Co. v. Thoburn,7 Serg. & B. 411, down to the present day. Volkmar St., 124 Pa. St. 320, 16 Atl. Rep. 867; Whitaker v. Phcenixville, (Pa.) 21 Atl. Rep. 604; City of Philadelphia's Appeal, (Pa.) Id. 828. The cases which were governed by a different rule...