Ogden v. City of Philadelphia

• Decision Date: 05 October 1891
• Docket Number: 247,246
• Citation: 143 Pa. 430,22 A. 694
• Parties: R. T. OGDEN v. CITY OF PHILADELPHIA; M. H. ELLIS v. CITY OF PHILADELPHIA
• Court: Pennsylvania Supreme Court

22 A. 694

143 Pa. 430

R. T. OGDEN v. CITY OF PHILADELPHIA;

M. H. ELLIS v. CITY OF PHILADELPHIA

Nos. 246, 247

Supreme Court of Pennsylvania

October 5, 1891

Argued April 10, 1891

APPEALS BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY.

Nos 246, 247 January Term 1891, Sup. Ct.; court below, Nos. 186 244 September Term 1888, C.P. No. 1.

On October 8, 1888, the city of Philadelphia filed in the court below its appeal from the report of a jury of view, appointed by the Court of Quarter Sessions, assessing damages in favor of Richard T. Ogden, for a change of grade of North street. On October 10th, a similar appeal from an award of damages made by the same jury in favor of Margaret H. Ellis was filed. The date at which the proceeding was commenced in the Court of Quarter Sessions was not shown in the paperbooks. Both cases were put at issue upon statements of claim in trespass, setting forth, as the cause of action, injuries done by the physical change of grade in 1887, and pleas of not guilty. ^[*]

At the trial on October 27, 1890, the following facts were shown on the part of the plaintiffs:

On May 15, 1871, the Court of Quarter Sessions of Philadelphia county confirmed a plan fixing the grade of North street, there having been no established grade before that time. On January 26, 1887, an ordinance of councils was passed, authorizing the actual cutting of the street to correspond with the grade established in 1871, and in April and May, 1887, the cutting was done and the physical change effected. The respective properties of the plaintiffs were purchased by them subsequent to the establishment of the grade in 1871. Witnesses testified for the plaintiffs as to the extent of the injury caused to the properties by the change of grade, putting estimates upon the depreciation in market value resulting therefrom.

At the close of the testimony for the plaintiffs, defendant's counsel moved for judgments of compulsory nonsuit, upon the ground, as stated in appellants' history of the case, that the plaintiffs' claims were barred by the statute of limitations, which commenced to run with the confirmation of the plan in 1871.

By the court: Motion granted.

Motions to take off the nonsuits having been dismissed, without opinion filed, the plaintiffs took these appeals, assigning the refusal to take off the nonsuits for error.

Judgment reversed, and procedendo awarded.

Mr. Joseph S. Goodbread and Mr. E. Clinton Rhoads, for the appellants:

A statutory limitation presupposes a right of action, and can run only from the time at which such a right accrues: Leasure v. Mahoning Tp., 8 W. 551; Volkmar St., 124 Pa. 320; Keller v. Rhoads, 39 Pa. 513; Montgomery's Est., 3 Brewst. 309. No right of action whatever accrued to the property owners along North street, by virtue of the plan of 1871. Prior to 1874 there was no remedy for a change of grade except as given by § 27, act of February 2, 1854, P.L. 37; Philadelphia v. Wright, 100 Pa. 235; O'Connor v. Pittsburgh, 18 Pa. 187. That section applied only to a regulation changing a grade previously established, and therefore this case did not come within it: Ridge Ave., 99 Pa. 475; New Brighton Bor. v. U.P. Church, 96 Pa. 331. The right of action we seek to enforce was given by § 8, article XVI. of the constitution of 1874: Chester Co. v. Brower, 117 Pa. 654; and the right of action accrued thereunder when the actual change was made on the ground: Brower v. Philadelphia, 142 Pa. 350; North Chester Bor. v. Eckfeldt, 1 Mona. 732; Craft v. South Chester Bor., 2 Pa. C.C.R. 508; Kershaw v. Philadelphia, 27 W.N. 341; Volkmar St., 124 Pa. 320; Chestnut St., 118 Pa. 593; Easton Bor. v. Rinek, 116 Pa. 1; Easton Bor. v. Walters, 18 W.N. 117; Twenty-eighth St., 102 Pa. 149. The limitation in force is six years: Grape St., 103 Pa. 121.

Mr. James Alcorn (with him Mr. Howard A. Davis and Mr. Charles F. Warwick), for the appellee:

1. The plaintiffs were not the owners of the properties in question in 1871, when the grade was confirmed. At that time there was no remedy for damages inflicted by a first establishment of grade. If there had been, the then owner would have been the party entitled to recover the damages. The constitutional provision cited by plaintiffs was not retroactive, and had no effect upon the rights and remedies of the parties as they existed prior to 1874: Ridge Ave., 99 Pa. 469; Philadelphia v. Wright, 100 Pa. 235; Folkenson v. Easton Bor., 116 Pa. 523; Allegheny Co. v. Gibson, 90 Pa. 397; Ahl v. Rhoads, 84 Pa. 319; Pierce v. Commonwealth, 104 Pa. 150; Penna. R. Co. v. Duncan, 111 Pa. 352.

2. If, however, the constitution did give a remedy, the right of action vested in the injured party at the adoption of the constitution, and it was barred in 1880. Moreover, the right to recover did not belong to the plaintiffs, but to the persons who were the owners in 1874. If the proposition that the right of action did not accrue until the physical change in 1887, be sustained, we will have confusion in such proceedings, as it is established that where there is a change from an existing confirmed grade, the right of action accrues upon confirmation of the second grade, and not upon its physical establishment.

3. This was the rule prior to 1874, such a change being then the only case in which there was a remedy: Campbell v. Philadelphia, 108 Pa. 300; Ridge Ave., 99 Pa. 469; Philadelphia v. Wright, 100 Pa. 235; O'Connor v. Pittsburgh, 18 Pa. 187. The construction that the right of action accrues upon the confirmation of the grade, whether it be the first or a revised grade, would make uniformity in the proceedings. It is upon such confirmation that the damage occurs: Fifth & Sixth Sts., 4 W.N. 443; Philadelphia v. Wright, 100 Pa. 235; and the physical construction of the street does not create or cause any new damage or injury. The cases of opening or widening of streets, cited by plaintiffs, do not apply, as the damage there is the taking of land, which occurs only upon the legal opening or widening.

Before PAXSON, C.J., GREEN, CLARK, McCOLLUM and MITCHELL, JJ.

OPINION

MITCHELL, JUSTICE

In the absence of any OPINION 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....