City of Philadelphia v. Wright

Mr. Justice Paxson

delivered the opinion of the court October 2d 1882.

The plaintiffs are the owners of a tract of land in the city of Philadelphia situated along the line of the connecting railroad. Upon the public plan of said city certain streets, viz.: Second, Third, Fourth and Fifth, are laid out as passing through said property. The grades of these streets were fixed by plan No. 157, confirmed June 11th I860, and were altered by plan 251, confirmed by an Act of the General Assembly on March 15th 1871. It was in. evidence and not disputed that the change of grade prescribed by the latter plan was not actually *238 made upon the ground on Fifth street until the year 1880, when said street was opened, and that it lias never been made on the ground on the other streets. The proceedings to obtain damages for the change of grade were commenced on the 15th of December 1877, when the plaintiffs below filed a petition for the appointment of a jury to assess the damages which they claimed to have sustained by reason of said change.

Prior to the passage of the Act of February 2d 1854, P. L. 37, there was no remedy when property was injured by a change of grade. The 27th section of said act provided such remedy. The plaintiff must recover if at all by virtue of said act, the 8th section of article 16 of the constitution having no application, for the reason that the change of grade occurred, and the rights of the parties became fixed before the adoption of that instrument. This subject is discussed in the Grade of Ridge Avenue, decided at the last term in the eastern district.

The city resists the payment of the claim for damages, and assigns for error that there was neither jurisdiction in the common pleas to enter judgment, nor in the quarter sessions to appoint a jury to assess the damages.

We decided in Re Grade of Ridge Avenue that the damages for a change of grade must be ascertained as in the case of damages for opening streets ; that the general road law of 1836 was applicable to the city of Philadelphia, and that the limitation of one year contained in said act applied to that case. The limitation referred to applies equally to this case, aud if that decision is to stand the plaintiffs here are too late with their claim. That question has been thoroughly and ably re-argued in the present case, and in view of the importance of the question wre have re-examined it with care. Snell re-examination has failed to convince us that our rulings in the Ridge, Avenue case upon this point are erroneous. The question of the applicability of the general road law of 1836 to the city of Philadelphia, has been before this court in a number of cases and was settled in Smedley v. Erwin, 1 P. F. S. 445. If, as was contended, the limitation contained in section 7 of the act of 1836 is inconsistent with the Acts of April 6th 1802, and of March 25th 1805, it would seem to follow that the latter named acts are repealed pro tanto by section 32 of the act of 1836, which provides that “ all laws hereby altered or supplied, so far as they are inconsistent with this act, are hereby repealed,” &c. Be that as it may, I have been unable to find in the legislation since 1836 any Act which either in express terms or by necessary implication repeals the limitation in the act of 1836. That the mode of paying the damages has been changed is not to the purpose. Granted that to this extent section 7 of the Act of 1836 has been modified, it in no wise affects the limitation itself.

*239 We liave nothing to do with the wisdom of the limitation. Yet it seems as inportant that some limit should be fixed in this class of claims as in any others, and we have been shown no reason why a limitation of one year is unreasonable.

We do not propose to re-argue this question. Adhering as we do to the views expressed in the Eidge Avenue case, it becomes unnecessary to consider the remaining questions presented, by this record. The claim of the plaintiffs having been presented too late, the judgment below must be set aside.

Judgment reversed.