Saeger v. Commonwealth

• Decision Date: 14 May 1917
• Docket Number: 95
• Citation: 258 Pa. 239,101 A. 999
• Parties: Saeger, Appellant, v. Commonwealth of Pennsylvania
• Court: Pennsylvania Supreme Court

101 A. 999

258 Pa. 239

Saeger, Appellant, v. Commonwealth of Pennsylvania

No. 95

Supreme Court of Pennsylvania

May 14, 1917

Argued April 24, 1917

Appeal, No. 95, Jan. T., 1917, by plaintiff, from judgment of C.P. Crawford Co., Sept. T., 1916, No. 5, refusing to take off compulsory nonsuit in case of C. W. Saeger v Commonwealth of Pennsylvania. Affirmed.

Appeal from award of viewers.

The facts appear in the following opinion by PRATHER, P.J.:

This case arose out of an appeal from the award of viewers assessing damages in favor of plaintiff for the vacation of a certain portion of a public highway in front of plaintiff's dwelling house by the commissioner of highways.

The highway in question extends from Meadville to Erie and is the highway described as Route 84 in the Act of May 31, 1911 P.L. 468, 482. This public road became a State highway on or before June 1, 1912, by virtue of the provisions of Section 5 of said act, and thereafter, according to the provisions of Section 6 thereof, came "under the exclusive authority and jurisdiction of the State Highway Department."

Section 8 of said act provides:

"Whenever in the construction, reconstruction, maintenance and repair of any of the State highways, it shall appear to the commissioner that any part or portion of a State highway, as now defined and described in this act, is dangerous or inconvenient to the traveling public, in its present location, either by reason of grades, dangerous turns, or other local conditions; or that the expense to the Commonwealth in the construction, building, rebuilding maintenance and repair thereof would be too great or unreasonable, and could be materially reduced or lessened by a divergence from the road or route; the commissioner is hereby empowered to divert the course or direction of same; and he may diverge from the line or route of same as herein described, in such direction or directions as in his discretion may seem best, in order to correct said danger or inconvenience or lessen the cost to the Commonwealth."

By stipulation of counsel it was agreed that the State highway commissioner in 1914 and 1915 had diverted from its original course a certain part of said State highway lying wholly within the Township of Woodcock, a township of the second class, and passing through plaintiff's farm, by constructing a new road about one mile in length along the west side of the Erie railroad track and west of the right of way of the Northwestern Pennsylvania Railway Company; the termini of said new road connecting with points on the State highway, thereby substituting said new road for that part of the State highway lying between said points and east of said railroad and street railway.

The said highway in this vicinity extends in a general north and south direction. The substitution or divergence complained of avoids two railroad crossings at grade.

With these facts conceded upon the trial, we were of the opinion that plaintiff had no cause of action against the Commonwealth for the conduct of the State highway commissioner; hence, rejected the offer to prove damages and directed a nonsuit.

It is clear that plaintiff's right to recover must rest upon some constitutional or statutory provision. Counsel for plaintiff contend that the recited facts operate as a vacation of said road. But, even if so, the Constitution of 1874 gives no right to damages for the vacation of a public highway.

Let us then inquire: (a) Whether there was in fact a vacation, and if so: (b) Whether any statute provides damages therefor.

We are of the opinion that the diversion complained of does not in fact vacate the portion of road now rejected from said State highway.

The general road law of the State is the Act of June 13, 1836, P.L. 551. Section 18 thereof provides: "The courts aforesaid shall . . . have authority to change or vacate the whole or any part of any . . . public road."

With reference to laying out and vacating public highways, this act is still the law of the State. This act is not repealed or modified by the Act of 1911. The latter act neither vests in the State highway commissioner any authority to vacate a public road, nor makes any reference to the subject of vacation. The reasonable inference flowing therefrom is that the legislature, in granting the commissioner of State highways the authority to divert the course of a State highway for reasons named, intended such act to be a divergence and not a...