Kough v. Pennsylvania Railroad
Kough v. Pennsylvania Railroad
Opinion of the Court
Opinion by
The appellant’s contention that a recovery against it was allowed for a cause of action.not declared on must be sustained. The substance of the allegations in the declaration is that the defendant, without having tendered a bond as required by law, entered by force upon and appropriated to its use a strip of the plaintiff’s land adjoining its right of way and placed an additional track thereon; that the movement of trains on this track made his house less desirable as a residence because of
The proofs at the trial were that in the borough of Mount Union the defendant’s road was eight feet below the grade of a public street on which the plaintiff’s property was situated. There was a sloping bank six and a half feet in width on the north side of the street between the level portion thereof and the defendant’s roadbed. By authority of the borough council, granted by ordinance, the defendant removed the bank, built a retaining wall, and occupied six and a half feet of the street at the grade of its tracks on the side opposite the plaintiff’s property. The grade of the part of the street that was traveled was not changed, nor was any part of the plaintiff’s land taken. The claim for damages for the inj ury to shad e trees was not sustained by proof and was withdrawn from the jury by the court; and the throwing of dirt and stones complained of was not on the private property of the plaintiff, but on the surface of the public street during the progress of the work. The only ground for the recovery of damages that the testimony tended in any way to establish was interference with the means of access to the plaintiff’s property. This was not alleged as a ground for recovery, nor was it a natural result of the grounds laid, and its submission to the jury was error.
When testimony on this subject was first objected to, the plaintiff was proceeding on the theory that a street had not been laid out in front of his property and that a part of his land in actual occupation had been taken. The objection was properly overruled because, if a part were taken, the testimony was admissible to show the injury to the remaining land. But it was afterwards shown beyond controversy and admitted that a public street had been established by dedication by a previous owner and by adoption by the borough, and the question of the right to recover for interference with the means of access was raised by a request for charge. The change of front by the plaintiff during the trial no doubt led to the error, but it cannot be said that the defendant acquiesced in the submission of a question not involved in the issue. The plaintiff may have a cause of action for the impairment of a right incident to his property, under the principles stated in Jones v.
The judgment is reversed.
Reference
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- Kough v. Pennsylvania Railroad Company
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- Syllabus
- Railroads — Damages—Trespass—Pleadings—Variance—Allegata and probata. It is not enough that the evidence shows a cause of action; it must show the cause alleged. In an action by a landowner against a railroad company, the plaintiff in his statement averred that the defendant without having tendered a bond entered and appropriated a strip of plaintiff’s land adjoining its right of way, and placed an additional track thereon; that the movement of trains on this track made his house less desirable as a residence because of vibration, noise and dirt; and that the defendant destroyed shade trees and threw stones and earth on a part of his land not appropriated. At the trial the proofs were that the strip appropriated was in fact a dedicated public road, that no shade trees had been injured, and that the throwing of dirt and stones was not on the property of the plaintiff, but on the surface of the street. The only testimony that tended to show injury to plaintiff was to the effect that the construction of the additional track interfered with the means of access to plaintiff’s property. Held, that it was reversible error to permit the jury to allow plaintiff damages for interference with access to his property, inasmuch as there was nothing alleged in the statement of claim as a basis for the recovery of such damages.