Penn. R. Co. v. Marchant

Citation119 Pa. 541
PartiesPENNSYLVANIA R. CO. v. EDW. D. MARCHANT.
Decision Date09 April 1888
CourtUnited States State Supreme Court of Pennsylvania
119 Pa. 541
PENNSYLVANIA R. CO. v. EDW. D. MARCHANT.
Supreme Court of Pennsylvania.
Argued March 19, 1888.
Decided April 9, 1888.

Page 542

Before GORDON, C. J., PAXSON, STERRETT, GREEN, CLARK and WILLIAMS, JJ.; TRUNKEY, J., absent.

ERROR TO THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.

No. 142 July Term 1887, Sup. Ct.; court below, No. 133 September Term 1884, C. P. No. 3.

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Mr. Wayne Mac Veagh (with him Mr. James A. Logan, Mr. George T. Bispham and Mr. A. H. Wintersteen), for the plaintiff in error:

The points submitted in this case and the answers thereto, as well as the rule laid down by the court below as to the measure of damages, puts the case under the decision of this court in Penn. R. Co. v. Lippincott, 116 Pa. 472. The argument of the plaintiff in error in that case is repeated as the argument in this case.

Independent of section 8, article XVI., of the constitution, it could never be claimed that an action would lie in such cases as the present, for there was no taking of property in the sense of the old law. But, even under this constitutional provision, there is no valid claim for compensation in this case.

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1. Section 8, article XVI. of the constitution, requires compensation to be made to property owners for such injuries only as would be actionable at common law, if done by a person not invested with the state's right of eminent domain: Edmundson v. Railroad Co.. 111 Pa. 320; Shrunk v. Schuylkill Nav. Co., 14 S. & R. 71; Lehigh Bridge Co. v. Lehigh Coal & Nav. Co., 4 R. 23; Watson v. Railroad Co., 37 Pa. 469; Sunbury & Erie R. Co. v. Hummell, 27 Pa. 104; Lehigh Valley R. Co. v. Trone, 28 Pa. 206; Pittsb. & Lake Erie R. Co. v. Jones, 111 Pa. 204.

From the cases cited, it is clear that the word "injured," as used in the constitution, can mean but one thing, namely, a legal wrong, or such an interference with another's right as would be the ground of an action at common-law. Such is the meaning of the word as established in the English courts: Denver v. Bayer, 23 Amer. L. R., N. S., 447; Rochette v. Railway Co., 17 Amer. & E. R. C. 194; Caledonia R. Co. v. Ogilvy, 2 McQ. 229; Ricket v. Railway Co., 2 H. of L. 175; Caledonia R. Co. v. Walker's Trustees, L. R. 7 App. C. 259.

2. The injuries to the plaintiff, arising from the construction of the defendant's road on the opposite side of the street, on its own property, are not such injuries as would be actionable at common-law if done by a person or corporation vested with a franchise to operate a steam railroad, and not vested with the state's right of eminent domain. The defendant, therefore, is not liable for such injuries: Penn. Coal Co. v. Sanderson, 113 Pa. 126; West Cumberland I. & S. Co. v. Kenyon, L. R. 11 Ch. D. 787; Panton v. Holland, 17 Johns. 99; Thurston v. Hancock, 12 Mass. 220 (7 Amer. D. 57); Platt v. Johnson, 15 Johns. 213; Clarke v. Foot, 8 Idem 421; Brand v. Railway Co., L. R. 2 Q. B. 247.

In all of the cases in this court at all analogous, since the constitution of 1874, among which are Pusey v. Allegheny, 98 Pa. 522; Penn. R. Co. v. Duncan, 111 Pa. 352; Phila. & R. R. Co. v. Patent, 17 W. N. 198; Pittsb. Junction R. Co. v. McCutcheon, 18 W. N. 527, and Pittsb. Junction R. Co. v. Smith, recently decided, the decisions are all sustainable on the ground that the plaintiff in each of them, who was the abutting property owner, owned to the middle of the highway, and, besides the fact that his land was taken, he suffered very

Page 548

material damage to his property in that there was an obstruction of light or an interference with free access or something of the kind.

So the English cases where the plaintiff recovered: Reg v. Railway Co., 2 Q. B. 347; Glover v. Railway Co., 16 A. & E., N. S., 912; Reg. v. Railway Co., 14 Q. B. 25; Chamberlain v. Railway Co., 2 B. & S. 605; Beckett v. Railway Co., L. R. 3 C. P. 82; Metropolitan Board of Works v. McCarthy, L. R. 7 Eng. & I. App. 243; Caledonia R. Co. v. Walker's Trustees, L. R. 7 App. C. 259. So the cases of other states in this country: Proprietors of Locks and Canals v. Railroad Co., 10 Cush. 385; Presbrey v. Railroad Co., 103 Mass. 1; Ermes v. Worsted Co., 11 Met. 570; Fuller v. Manufacturing Co., 16 Gray 460; Pub. Stat. Mass. 1882, p. 618; Wood's R. Law, § 212.

If, however, it should be held that the plaintiff's property has been injured within the meaning of the constitution, it remains to consider the position that

3. The constitution provides only for compensation arising from the construction of the railroad. There can be no compensation for injuries to persons or property, unaccompanied with negligence and arising merely from the operation or use of the railroad, as distinguished from its construction: Newcastle & F. R. Co. v. McChesney, 85 Pa. 522. "Without the word `use,' the injury for which a railroad is liable would simply be such as results from the construction and repair of the road:" 3 Conv. Deb., 600-605.

Under the Land Clauses Consolidation Act, 8 and 9 Vict., Ch. 18, §§ 63 and 68, have been decided: Rickett v. Railway Co., L. R. 2 Eng. & I. App. 198; Hammersmith & City R. Co. v. Brand, L. R. 4 Eng. & I. App. 171; Caledonia R. Co. v. Walker's Trustees, L. R. 7 App. C. 259. See also Penny v. Railway Co., 7 E. & B. 660; Glasgow U. R. Co. v. Hunter, L. R. 2 Scotch Ch. Div. App. 78.

Mr. M. Hampton Todd (with him Mr. George H. Van Zandt), for the defendant in error:

It is conceded that this case is identical with Penn. R. Co. v. Lippincott, 116 Pa. 472, but we hope to convince this court that the defendant is liable for the injury it has done to the plaintiff's property.

Page 549

1. Two rules assist in the construction of § 8, article XVI., of the constitution of 1874: (1) "There are three points to be considered in the construction of all remedial statutes: the old law, the mischief and the remedy. . . . . And it is the business of all judges to construe the act so as to suppress the mischief and advance the remedy:" 1 Bl. Com. 87*; Hayden's Case, 3 Co. 7. (2) "A constitution is not to receive a technical construction like a common-law instrument or a statute. It is to be interpreted so as to carry out the great principles of the government, not to defeat them:" Commonwealth v. Clark, 7 W. & S. 133; Monongahela Nav. Co. v. Coons, 6 W. & S. 114.

2. The constitution of 1790 declared in the Bill of Rights: "Nor shall any man's property be taken or applied to public use without the consent of his representatives or just compensation being made;" and this clause was repeated in § 10, article IX., of the constitution of 1838. It is unnecessary to cite the line of cases beginning, perhaps, with Phila. & T. R. Co., 6 Wh. 42, and ending with Struthers v. Railway Co., 87 Pa. 282, to establish that the person injured by the exercise of the right of eminent domain could not recover unless some of his property was actually "taken." It mattered not how little, so a portion was actually taken, because the owner could then recover not only compensation for the land taken, but also the damages done to his remaining land. Injuries, where no property was taken, were held to be consequential and were not recoverable unless the charter of the particular company imposed liability therefor: O'Connor v. Pittsburgh, 18 Pa. 189; Monongahela Nav. Co. v. Coons, 6 W. & S. 114.

3. To remedy this evil, to suppress this mischief, the clause of the constitution under consideration was adopted. The words "injured or destroyed" were added to cover the cases of consequential injuries not included and relieved against by the word "taken." In endeavoring to ascertain the old law, the mischief and the remedy, what was said by eminent lawyers of the convention is entitled to some consideration. Mr. Meredith said: "Let us try to regulate that and restore it to reason and experience and the protection of the common law, by providing that when these works are made, property injured by them, whether part of that property be taken or not, shall

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be entitled to recover damages:" 3 Conv. Deb., 598; Mr. Addricks, Idem 599, 600; Mr. Meredith, Idem 597; Mr. White, Idem 599.

4. This court, in a number of cases arising since the adoption of the new constitution, have uniformly held that the words "injured or destroyed" included damages consequential which, prior to the adoption of that instrument, could not have been recovered: Pusey v. Allegheny, 98 Pa. 522; Reading v. Althouse, 93 Pa. 400; New Brighton v. The U. P. Church, 96 Pa. 331; Penn. R. Co. v. Duncan, 111 Pa. 352; P. & R. R. Co. v. Patent, 17 W. N. 199. It was as consequential damages, and only so, that Mr. Duncan recovered. It was by virtue of the words "injured or destroyed" that he acquired the right to compensation, and not by reason of the interference with his easement over Filbert street in front of his property. Such interference had proved insufficient for a recovery in every similar case from the beginning down to Struthers v. Railroad Co., 87 Pa. 282.

5. The words "injured or destroyed" having been added in the constitutional provision in order to protect those who had suffered consequential damages, who are those entitled to the protection of that clause? Under the general railroad act of 1849, the language of the provision for damages is: "In consequence of the making or opening of said railroad;" which language has been held to include damages for the intended use. "Whatever impediments are caused by the ordinary and proper use of a railroad we attribute to its construction:" BLACK, C. J., in Commonwealth v. Railroad Co., 27 Pa. 339; see also, Railroad Co. v. Yeiser, 8 Pa. 366; Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411; Pittsb. etc. Ry. Co. v. McCloskey, 110 Pa. 436; and to the same general effect are: East Penn. R. Co. v. Hottenstine, 47 Pa. 28; West Penn. R. Co. v. Hill, 56 Pa. 460...

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