Thompson v. Citizens Traction Co. , 181 Pa. 131 ( 1897 )

Opinion by

Mr. Justice McCollum,

The right of the plaintiffs to compensation for the injury done to their property by the change of grade of the highway in front of it and the construction thereon of the railway is not disputed. The defendant however contends that the court adopted a wrong method of ascertaining the compensation they were entitled to receive for the injury thus inflicted. All the specifications of error relate to this contention, and the cases cited as sustaining it are Lentz v. Carnegie, 145 Pa. 612; McGettigan v. Potts, 149 Pa. 155, and Eshleman v. Martic Township, 152 Pa. 68. The rulings and instructions complained of were to the effect that the depreciation in the value of the property as the result of the change of grade and the construction and maintenance of the railway furnished the measure of compensation. Why the defendant in the light afforded by the testimony in the case complains of this measure is not apparent. The uncontradicted evidence on the part of the plaintiffs was to the effect that the cost of raising the lot and buildings to the level of the railway would exceed the depreciation in the value of the property. Besides, the manner in which the case was tried makes the judgment in it a bar to any future action by them for damages arising from the location of the railway.

The plaintiffs were justified in regarding the railway as a permanent structure, an additional and continuing servitude on their land within the highway. They could not compel a change of grade or location, nor remove the embankment which interfered with access to their lot and was necessary to the support and operation of the railway. Their only remedy was an action to obtain compensation for the injury inflicted: Penna. R. Co. v. Montgomery Co. Pass. Ry., 167 Pa. 62. No good reason appears for holding that the rulings and instructions in regard to the measure of compensation were erroneous. The mere fact that the defendant was not invested with the power or right of eminent domain is not a sufficient warrant for condemning them. It is true that they were in accord with the settled rule for the ascertainment of compensation in a case where a corporation invested with the privilege of taking private property for public use has in the construction or enlargement of its works, taken, injured, or destroyed the property of another. But this rule is not necessarily limited to such cases. It may be applied in a case of permanent injury to real estate when the issue is between private persons. An illustration of this may be found in Williams v. Fulmer, 151 Pa. 405. In that case the plaintiff sought to recover from the defendant compensation for an injury to his property by reason of the diversion of the water of a navigable river from its natural channel in front of his land, and it was held that “compensatory damages in such case would be the depreciation in value of the property, if the injury were permanent, or the cost of removing the obstruction, whichever was the lower amount.” In our case the defendant made no answer to the plaintiffs’ evidence in relation to the cost of raising the lot and buildings. Its evidence was principally directed to the establishment of its claim that the matters complained of by the plaintiffs were a benefit to and improvement of their property.

The cases cited by the defendant are not analogous to the case at bar. This will sufficiently appear from an examination of them.

The defendant having located and constructed its railway on tbe public road without tbe consent of tbe abutting property owners, is liable to them for an injury done to their property by such location and construction. Its liability is the same as if it had obtained their consent to the construction of the railway on giving bonds to compensate them for such injuries to their property as its location and construction might inflict. In view of this liability, and tbe nature of the injury for which the plaintiffs ask compensation, we are not satisfied of error in the rulings and instructions complained of.

Judgment affirmed.