Rodgers v. City of Philadelphia , 181 Pa. 243 ( 1897 )

Opinion by

Mr. Justice Fell,

The proceeding in the common pleas was an appeal by the plaintiffs from the award of a jury appointed in 1890 to assess the damages and benefits arising from the widening of Kensington avenue from thirty to seventy feet. It was a part of the plan for the improvement of the avenue that a new bridge should be erected over Frankford creek. This bridge was to take the place of a covered bridge which spanned the creek, and was to be erected at the same elevation. No change of grade was then contemplated. In 1892, after the proceedings before the road jury had been ended, and while the plaintiff’s appeal was awaiting trial in the common pleas, the grade of the avenue at the south side of the bridge was changed. The Belt Line Lailroad had been constructed in 1891, and in order to avoid crossing it' at grade, Kensington avenue, at the south end of the bridge, was elevated seven feet. , A jury of view was appointed in 1892 to assess the damages occasioned by the construction, and awards were made to the plaintiffs and others whose property had been injured. The plaintiff’s land taken in 1890 by the widening of the street was on the north side of Frank!ord creek; his land injured by the construction of the abutment of the bridge in 1892 was on the south side of the creek.

If the proceedings of 1890 and those of 1892 related to different and distinct properties, or if they related to the same property, and the change of grade for which damages were recovered under the proceedings of 1892 was a separate act of the municipal authority, and done so long after the opening of the street that .the damages resulting therefrom could not be recovered with the damages for the opening, the trial was free from error. The pursuit of the first inquiry involves the ascertainment of facts from the voluminous record and testimony, and it is unnecessary to enter upon it, as the answer to the second inquiry brings the case within the rule stated in Clark v. City of Phila., 171 Pa. 31.

The claim of a property owner for the opening of a street must be asserted as an entirety, and if any part of it be omitted he is estopped from afterward setting it up. Pie must submit the whole claim, and no second process can be had for a part of it. The value of the land taken, the condition of what remains as affected by the lines of the street, and the elevation or depression of the natural surface, are elements in the calculation, but they are not distinct claims. But claims for opening and for grading a street may be enforced at different times and by different proceedings when the opening and the grading are distinct municipal acts and are so far separated in time that the damages for the grading cannot be recovered with those for the appropriation of the land: Pusey v. Allegheny, 98 Pa. 522; Righter v. Phila., 161 Pa. 73; Clark v. Phila., 171 Pa. 30. The. proceeding in 1890 was to recover damages occasioned by the widening of the street at the then established grade, and it was not a bar to the proceeding in 1892, which was founded upon a distinct cause of action for which a recovery could not have been had in-the first proceeding, as the elevation of the surface of the street was not in contemplation until after the report of the jury was filed. Nor was a recovery in the later proceeding a bar to the further prosecution of the first. It was for consequential damages for the injury done by the change of grade of •a street, and in this proceeding there could have been no recovery for the value of the land taken two years before by the opening, and which had been the subject of inquiry and ascertainment by another jury.

The judgment is affirmed.