Mellor v. City of Philadelphia
Mellor v. City of Philadelphia
Opinion of the Court
Opinion by
This is one of sixteen cases which were tried in the court below on appeals from the report of viewers appointed to assess damages caused by changing the grade of Orthodox street in the city of Philadelphia. The plaintiffs respectively owned property fronting on the north side of Trenton avenue, a narrow street running nearly east and west along the northerly line of the New York division of the Pennsylvania railroad. Until recently, Orthodox street and another street named Margaret, about four hundred and fifty feet further east, both crossed said railroad at grade and nearly at right angles thereto. Owing to the vast increase in every form of street travel and the greatly increased business of the railroad company, these grade crossings became so exceedingly dangerous that councils deemed it necessary to lower the grades of Orthodox and Margaret streets and thus carry them both under the railroad. This was accordingly done by lowering the grade of each to such an extent that the cut across Trenton avenue was about fifteen feet deep. That, of course, cut off all communication, except by pedestrians, with either of said streets, and that portion of Trenton avenue lying between them, and practically prevented ingress and egress, by vehicles, to and from that part of Trenton avenue west of the Orthodox street crossing. The respective properties of ten of the plaintiffs were located between said streets, and are referred to by counsel as the “ eastern group.”
The remaining six properties, located west of Orthodox street, are referred to as the “ western group.” For convenience’s sake, the appeals relating to the respective lots of each group were tried by the same jury. In each case, however, ' separate verdicts were rendered in favor of the plaintiffs repectively.
It is not our purpose to refer to the testimony showing the extent to which the several properties were damaged by said change of grade. The proof is clear, positive and undisputed, except as to the amount of damages in each case. Speaking approximatively, the plaintiff’s witnesses fixed the damages at
It is conceded that in making the improvements the city authorities acted in the line of their duty. In fact the public safety demanded that the grade crossings should be avoided, and the only feasible way of doing so was that which was adopted.
The respective claims of the plaintiffs to compensation were based on the constitutional provision that “ municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements : ” . . . Const., art. 16, sect. 8. Defendant’s contention was that this provision is inapplicable to any of the eases under consideration, because neither of the properties fronts or abuts on either of the streets, the grade of which was changed. This would indeed be a very narrow and unreasonable construction of the words above quoted, especially in view of the history and object of the constitutional provision. It was intended to provide against the great injustice that was continually resulting from the ruling of this court in O’Connor v. Pittsburgh, 18 Pa. 189, that “ the constitutional provision for the case of private property taken for public use extends not to the case of property injured or destroyed.” In connection with this statement
It was contended, on behalf of the city, that, inasmuch as the properties of the several plaintiffs do not front on Orthodox street, they “ are not entitled to any damages; that because Trenton avenue has not been changed, the plaintiffs, no matter how much they have been injured, are not entitled to damages for the alteration of the side street; ” and points for charge substantially to that effect were submitted. The learned trial judge very properly refused to thus narrowly and unreasonably construe the constitution. He rightly conceded, however, “ that where the street which undergoes an alteration is not sufficiently near to the property of a citizen as to make the injury proximate and immediate and substantial, he would have no right to claim damages for change of grade of such a street; ” and in connection therewith he appropriately added: “ In case of properties situated as these properties are, and so affected by the change of grade that their ingress and egress to and from their houses is materially injured, partly destroyed, and where the injury is so obvious that it admits of comparatively easy calculation as to the extent of the diminution of the value of the property, I cannot doubt that such a case is covered by the constitution,” etc.
Further consideration of the questions involved in the specifications of error is quite unnecessary. The cases were carefully and ably tried by the learned president of the court below. The correctness of his rulings, so far as challenged by either of the specifications, is amply vindicated by his clear and concise charge in each group of cases respectively. The judgment in this, as well as the judgment in each of the other cases, is therefore affirmed.
Reference
- Full Case Name
- Mellor, Ex'r v. City of Philadelphia
- Cited By
- 24 cases
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- Published
- Syllabus
- Road law — Change of grade of street — Cutting off ingress and egress— Consequential damages — Constitution, art. 16, sec. 8. Article 16, section 8, of the constitution of 1874, which provides that compensation shall be made for property injured or destroyed by public works, is not limited merely to property fronting or abutting on the particular works, highway or improvement by the construction or enlargement of which the property is injured or destroyed, but applies to any works which are sufficiently near to the property to make the injury proximate, immediate and substantial. Plaintiffs’ houses fronted on a street running along the line of a railroad. Two other streets crossed at grade the railroad, and the street upon which the houses were situated. To avoid the grade crossings the city depressed the two cross streets fifteen feet, so that the streets could go-under the railroad. Access to plaintiffs’ houses by vehicles was thus entirely cut off. Held, that plaintiffs were entitled to recover damages from the city for the depreciation in the value of their houses. Damages — Release—Evidence. In the above case, where the proceedings were as to one of the streets, it was not improper upon plaintiffs’ releasing damages as to the other street in other proceedings, to admit testimony tending to show the damages resulting not merely from lowering the grade of one of the streets, but from changing the grades of both streets.