Bachler's Appeal

Mr. Justice TRUNKBY

delivered the opinion of the court,

The mode of taking private property for public use by municipal corporations is in the control of the legislature, subject only to the limitations of the constitution. Whether it be by action of the city officers; or, as was formerly lawful, by a special commission ; or through the courts, the end is reached — the owner is deprived of his property for the use of the municipality. If it be taken for a highway, by similar process as is provided for laying out and opening a public road in a county, the result is a street in *209 a city or borougn, not varying a particle from one laid out and opened by the immediate action of the municipal officers. Nor does it make the slightest difference who pays the damages. That also is controlled by the state. She may pay them herself, or direct that they be paid by the city, borough or county; or by assessments upon property benefited by the improvement.

The Act of April 18th 1873, relating to laying out, opening and grading streets in the city of Lancaster, provided for a complete survey and plan of the city, including the widening of old streets and alterations in their grades, the vacating of public and private ways which may be supplied, and the locating and grades of new streets. The councils of the city appointed the engineer and assistants to do this work, and the plan was made subject to' correction and final adoption by the Court of Quarter Sessions. Before the opening of a new street, laid out on said plan, prescribed proceedings must be had in said court for an order and ascertainment of damages. Can it be seriously pretended that, because of the manner in which the plan was adopted and by which new streets may be opened, the property appropriated for that purpose is not taken by the city ? Whatever the agencies which make the appropriation, they are created by the ■ state and act in behalf of the corporation. The city derives its powers, officers and agents from the Commonwealth. These may be changed. The plan adopted ,in pursuance of the Act of 1873, was for improvement of the city and better regulation of its highways. The procedure directed by that act changed the agency and form of laying out and opening new streets, yet taking property for them is as truly its act as if the immediate agency were the councils.

This case was commenced by petition to the court to direct the opening of Walnut street from Shippen to Plum. The Act of 1873 forbids its opening “ until the owner or owners of ground through and over which the same may pass shall have been paid the damage which shall have been ascertained.” Viewers were appointed, as the law directs, who performed their duties. From their report Bachler appealed and demanded a jury trial. The court dismissed his appeal pro forma, and that was error. Section 8, article 16, of the Constitution secures an appeal and a trial by jury for damages, wherever private property is taken by a municipal corporation for public use, and the Act of June 13th 1874 furnishes the remedy thus secured to owners, where no sufficient provision for trial by jury already existed. The remarks by Ac-new, C. J., in Pusey’s Appeal, 2 Norris 67, and Williams v. City of Pittsburgh, Id. 71, are so apposite to this case that nothing need be added.

The order of March 29th 1879, dismissing the appeal of Leonard Bachler, is reversed, and the appeal restored; the record to be remitted and procedendo awarded.