Howley v. Pittsburg , 204 Pa. 428 ( 1903 )

Opinion by

Mb. Justice Fell,

The assignments' raise the single question whether an owner of land who acquired title after the passage of an ordinance authorizing the grading of a street can recover for the injury to his property caused'by the grading. The rule established by our decisions is that it is the physical change and not the mere establishment of a grade on the official plans that gives a right of action, and that no damages are recoverable for a change of grade until the actual work on the ground is begun : In re Plan 166, 143 Pa. 414; Ogden v. Philadelphia, 143 Pa. 430; Clark v. Philadelphia, 171 Pa. 30; Philadelphia Ball Club v. Philadelphia, 192 Pa. 632. Prom this rule it follows that the owner of the property at the time when the actual injury is done, is the person entitled to recover.

The appellant’s contention is that as the Act of May 16,1891, P. L. 75, provides for the appointment of viewers to assess damages before the entry and injury, and the Act of May 26, 1891, P. L. 117, requires that the awarding of damages for the opening or widening of a street shall include all damages due to the grading at which such street is to be opened or widened, a new rule is necessary, as the old rule is applicable only in cases where the grading has been done before viewers are appointed. And it is suggested that a rule fixing the date at which the work is ordered to be done as the date for the assessment of damages would be of uniform application and equitable to both parties, in not exposing the municipality to speculative damages for a change that might not be made, and in allowing compensation to the owner when the actual change is made on the land.

Whether the legislation of 1891 calls for a new rule for the assessment of damages caused by grading a street need not now be considered, as in this case the viewers were appointed after the grading was done, and the rule heretofore established can be applied to it. Moreover the defendant has no standing to interpose the objection urged against the right of the plaintiff to recover. The petition was filed by the city, and the viewers as required by the act of May 16, estimated and determined the damages and the benefits, and to whom and by whom they were payable. To this report no exceptions were filed, nor was an appeal taken by the city. The plaintiff appealed, and the issue framed was to determine what benefits, if any, had been received by her, and what damages, if any, she had sustained. The plea was that her property had been benefited “ over and above all damages, and over and above the amount of special benefits assessed against the same.” It made no denial of her right to recover damages if her property had been injured, and no one has intervened and objected that she is not the party entitled. The city by its own proceeding determined that her property was liable to assessment for benefits ; it cannot on her appeal from the finding attempt to hold her liable for the benefits and deny her right to damages, there being no intervening rights.

The judgment is affirmed.