Jones v. Borough of Bangor

1. A landowner, who lays out a street through his property and dedicates it to public use, is not precluded thereby from recovering damages fora change in its grade made by the municipal authorities; at least, where the change is not ordained until several years after the dedication, and the grading is an act separate and distinct from the opening of the street. 2. The right of action, under § 8, article XVI. of the constitution, and the act of May 24, 1878, P. L. 129, for damages caused by changing the grade of a street, accrues when the work is done on the ground; it is the physical, not the paper change, which confers it. Wherefore, the damages accruing from a change of grade belong to him who is the owner of the abutting property at the time of the actual grading. 3. When a person becomes the owner of property, after the municipality has ordained a change in the grade of a street upon which it fronts, the fact that his purchase is made with the knowledge and understanding, on the part of both vendor and vendee, that the street will be made eventually to conform to the new grade, does not operate to relieve the municipality from liability for damages. 4. The consent which will relieve a municipality from its constitutional obligation to make just compensation to the owner for an injury to his property, must be something more than non-resistance. It should be given to the municipality by the party interested; and in express terms, or by necessary implication, it should embrace a release of the right to damages: Per Mr. Justice McCollum. 5. A lotowner, who joins in a request tó the authorities of a borough to grade a street, is not thereby estopped from claiming compensation for an injury to Ms property done by the grading. The distinction between such an act, and the acts which were held to create an estoppel in Bidwell v. Pittsburgh, 85 Pa. 412; Dewhurst v. Allegheny City, 95 Pa. 437; and MeKnight v. Pittsburgh, 91 Pa. 273, is obvious.

No. 842 January Term 1891, Sup. Ct.; court below, No. 29 December Term 1887, C. P. On November 7,1887, David J. Jones filed a petition for the appointment of viewers to assess damages for a change in the grade of Pennsylvania Avenue, in the borough of Bangor. Thereupon, the court appointed viewers, who afterward reported awarding the plaintiff $110 damages. Both parties having appealed from the award, the case was put at issue upon a statement of - claim and a traverse of certain of the averments therein contained, sec. reg. At the trial on January 20, 1891, the following facts were shown: Prior to 1874, John Lobb became the owner of eighteen acres of land lying on the south side of a public road, and the plaintiff became the owner of thirteen acres lying on the north side of the same road. Early in 1874, Lobb laid out his land in building lots, according to a plot which he placed on record. One of the streets dedicated by that plot was Pennsylvania Avenue. It was so laid out as to leave an irregularly shaped piece of Lobb’s land lying between it and the public road above mentioned. The borough of Bangor was incorporated on May 5, 1875, the Lobb tract and part of the Jones tract being included within its limits. On January 17,1877, the borough authorities adopted Pennsylvania Avenue, as laid out by Lobb, and established a grade therefor. This street had not actually been opened for travel; and, in the summer of 1878, W. W. Hambright was employed to fill up the low places sufficiently to make it passable. Hambright made a ’ fill in the centre of the street sufficiently wide for a wagon-way, but did not bring the street up to the grade established in 1877. He finished his work about August 1, 1878. In 1879, the public road, the boundary between the original tracts of Lobb and the plaintiff, was vacated by the borough, and the plaintiff took possession of the ground occupied by it. On July 8,1878, Lobb conveyed to the plaintiff the irregular piece of land lying between the public road and Pennsylvania Avenue; and, in 1882, the plaintiff bought from J. H. and Samuel Stocker a lot of ground fronting on the south side of Pennsylvania Avenue, one of several lots sold and conveyed by Lobb to the Stockers in 1874, and in 1888 he built a house on this lot. In 1887, the borough employed Charles Shoup to grade Pennsylvania Avenue, in accordance with the resolution of 1877 establishing a grade therefor. Shoup completed this work in November, 1887. The street level was thereby raised to a height of from five to seven feet above .the plaintiff’s land, on the north side of the street, and from four to six feet above his lot on the south side thereof. The door sill of his house was left about fifteen inches below- the surface of the street. The plaintiff, and other witnesses called by him, testified that his properties were depreciated in value by the raising of the street, and gave estimates of the extent of the depreciation. On cross-examination, the plaintiff stated that he had signed a petition to the borough council for the grading of Pennsylvania Avenue, but he did not understand that it asked for the raising of the street to the level at which it was afterwards placed; that he was unable to read the petition, and signed it after being told that it was a petition to “ fix the road ” and take a “ little hill out of it.” The defendant made the following offer: Defendant offers to prove by the records of the borough of Bangor, and its minutes and official map, that a system of grades and streets was made and adopted on the seventeenth day of January, 1877, which system of grades and streets included the part of Pennsylvania Avenue now in controversy; and, further, offers to prove that the part of Pennsylvania Avenue, just referred to, was laid out through the lands of John Lobb, and was dedicated by him to the borough of Bangor, and was subsequently accepted by the borough and acquiesced in and agreed to by the plaintiff, David J. Jones, and the adjoining property-holders, in lieu of the old road passing to the north of it, and that the old road was vacated by the borough, and tbe land occupied by David J. Jones as part of bis land; that the street was so laid out with reference to the grades of the same as fixed and understood bjr agreement of the parties upon the map of the borough theretofore adopted; that David J. Jones, the plaintiff, bought a lot on the south side of Pennsylvania Avenue, and also bought from John Lobb a strip of land upon the north side of Pennsylvania Avenue, between Fifth and Sixth streets, which gave him the only frontage upon that portion of Pennsylvania Avenue in controversy here, the alleged damages to which he now complains of, with the full understanding and under an agreement with the vendor that Pennsylvania Avenue was to be laid out and graded in conformity with the system of grades and map theretofore adopted by the borough; that, before the grade so laid out could be used, it was necessary, owing to the natural conformation of the.ground, that some work must be done to make it barely passable; that work was done by Hambright in May, 1878, under a contract with the borough to do only so much as was absolutely necessary to make it passable, and that the work so done was acquiesced in by the abutters upon the street, and the finances of the borough of Bangor did not permit any further work to be done upon that street at that time; that the abutters upon the street, David J. Jones, the plaintiff, and also Robert Keat and Thomas H. Miller, all built houses on the south side of Pennsylvania Avenue, between Fifth and Sixth streets, with reference to the grade as established by the borough in 1877, obtaining from the records of the borough and from the map the lines of grade so established; and defendant offers to prove, furthermore, by the surveyors of the borough and by Birge Pearson, the present surveyor of the borough, that the work done by Shoup was in exact and strict accordance with the grade established by the borough in 1877, and that the said surveyor supervised the work done by Shoup with reference to that grade, driving the stakes by which his work was to be done, and surveying and examining the levels after the work was completed; and, furthermore, that citizens of the borough and residents abutting upon Pennsylvania Avenue from time to time requested the borough verbally, and by written petition, among them David J. Jones, the plaintiff, to put Pennsylvania Avenue upon the grade conforming to the grades established by the borough ; and furthermore, to show, by persons familiar with the ground, that the work done by Hambright was work upon the centre of the road for the most part, and that the road was not graded out upon its sides, so that.it would appear to any ordinarily intelligent person, by an inspection of the road after Hambright had done his work upon it, that the road was not finished, but merely temporarily put in passable condition. Objected to, as incompetent and irrelevant. By the court: Objection sustained; exception.1 The foregoing offer was made at the suggestion of the court, to cover the defendant’s whole case. The defendant then made separate offers, presenting different phases of the case, among which were two, in substance as follows: Defendant offers to prove that the plaintiff, with other owners of property, petitioned the borough council, on April 1, 1887, “to grade Pennsylvania Avenue from Fifth street to the borough line;” and that, in answer to that petition, said avenue was subsequently graded in accordance with the original scheme adopted in 1877; to be followed by evidence that the petitioners intended by that petition the original grade as ordained by the borough in 1877. Objected to. By the court: Objection sustained; exception.8 Defendant offers to show a dedication of Pennsylvania Avenue on the part of John Lobb and the owner of the land on both sides of it; to be followed by evidence showing the acceptance of the same by the borough in accordance with a grade that was agreed upon. Objected to. By the court: Objection sustained; exception.4 Testimony for the defendant tended' to rebut the allegations of the plaintiff, as to depreciation in the value of this property by reason of the grading done by the defendant borough. The testimony being closed, the court, Schuyler, P. J., charged the jury in part as follows: [During the summer and fall of 1887, the borough changed the grade of this avenue between Fifth street and Seventh street, in front of the property of Mr. Jones, the plaintiff, and he now seeks to recover damages for the injuries which he alleges that this property has sustained in consequence. The question for you to determine is whether or not he has’ sustained any damages and if so how much.]6..... The question whether or not the plaintiff is entitled to a verdict at your hands is to be determined by the inquiry as to whether the plaintiff’s property was injured by the change of grade. You will inquire in the first place, what was the value of the plaintiff’s property immediately before the change of grade was made. It will be convenient for you to determine that question first. Having determined that question you will proceed, in the second place, to inquire what was the value of the plaintiff’s property immediately after the change of grade. If you find that the plaintiff’s property was worth just as much after the change of grade as before, or, if you find that it was worth more after the change of grade than it was before, then you will find a verdict in favor of the defendant, for in that event the plaintiff would not have sustained any damages. If, however, you find that the plaintiff’s property was worth less immediately after the change of grade than it was immediately before the change, then you will ascertain how much less’ it was worth, and your verdict will be for that amount, together with interest from the time the change of grade was made. Now what is the fact?..... The plaintiff requests the court to charge : 1. The cause of action accrued at the time the actual physical change of grade was made on Pennsylvania Avenue. Answer: Affirmed.5 2. Any physical change from the natural grade of the ground, or from a grade previously made, is within the meaning of the statute of May 24,1878. Answer: Affirmed. —The jury returned a verdict for the plaintiff for $350.50. Judgment having been entered, the defendant took this appeal, assigning for error: 1, 2, 4. The refusal of defendant’s offers.1 8 4 5. The affirmance of plaintiff’s point.5 6. The part of the charge embraced in [ ] 6