Pusey v. City of Allegheny

• Decision Date: 07 November 1881
• Citation: 98 Pa. 522
• Parties: Pusey <I>versus</I> City of Allegheny.
• Court: Pennsylvania Supreme Court

98 Pa. 522

Pusey versus City of Allegheny.

Supreme Court of Pennsylvania.

October 11, 1881.

November 7, 1881.

October 11th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT, and GREEN, JJ.

ERROR to the Court of Common Pleas No. 2, of Allegheny county: Of October and November Term 1881, No. 263.

Thomas M. Marshall (J. S. and A. P. Morrison with him), for the plaintiff in error.—Under the provisions of the eighth section of the sixteenth article of the constitution, we claim that the plaintiff is entitled not only to compensation for property actually taken, but also to compensation for property injured by the defendant in the construction of said highway. That article and section expressly provides, that "municipal corporations invested with the privilege of taking private property for public use, shall make just compensation;" not "for property taken" alone, but also for property "injured . . by the construction or enlargement of their works, highways or improvements." Also provided in the article and section above cited, that "The General Assembly is hereby prohibited from depriving any person of an appeal from any preliminary assessment of damages against any such corporations or individuals made by viewers or otherwise." And, further, that "the amount of damages in all cases of appeal shall, on the demand of either party, be determined by a jury according to the course of the common law."

It has been decided by this court in Pusey's Appeal, 2 Norris 67, that the plaintiff in error was entitled to an appeal and trial by jury as matter of right, under the provisions of the constitution above cited, and the Act of June 13th 1874, passed to give force and effect thereto.

Such trial was intended to determine the amount of consequential damages arising from the construction of the street as well as the direct damages for the land taken. The same question was ruled in Williams v. City of Pittsburg, 2 Norris 71; Bachler's Appeal, 9 Norris 209; and City of Reading v. Althouse, 12 Norris, 400.

W. B. Rogers, for the defendant in error.—Admitting, for argument's sake, that since the new constitution damages may be recovered for the injury or destruction of private property by a municipal corporation, we contend that this proceeding is not one in which that principle can be administered. The ordinance of March 12th 1874, authorized solely the opening of Charles street, and viewers were appointed to assess damages arising from such opening. There is a clear distinction between a proceeding for opening and one for grading a street. In this case, no grade had been fixed, no ordinance passed for the grading; the viewers had nothing to do with the grading. The report was simply on the opening. Had the viewers included damages for grading, their report would have been quashed by the court: In re Ridge street, city of Allegheny, 5 Casey 391. The appeal from the report under the Act of 1874 and demand of a jury trial raised the single issue of damages for opening. Besides, the verdict and judgment in a street-opening case is not a judgment quod recuperet, but it must be certified back with the record to the Quarter Sessions to have the damages and benefits assessed. The remedy for damages by reason of grade is a distinct and specific proceeding under the Act of May 1st 1876 (Pamph. L. 86), under which benefits as well as damages may be equitably assessed.

Mr. Justice GORDON delivered the opinion of the court, November 7th 1881.

Under the 8th section of the 16th article of the constitution of this Commonwealth, municipal, as well as other corporations, in whom are vested the right of eminent domain, are required to make just compensation for property taken, injured or destroyed by the construction or...