State Highway Route No. 72 , 265 Pa. 369 ( 1919 )

Opinion by

Mr. Justice Walling,

The question here is as to the liability of the Commonwealth for damages occasioned by the change of grade of a State highway. Appellants’ land abuts on the road leading from Pittsburgh to Butler, known as State Highway Route No. 72. By the improvement of this highway the grade thereof was raised, causing damage to the abutting property, but no change was made in the horizontal lines of the road. This occurred since the passage of the Act of May 31, 1911, P. L. 468, being the act for the establishment of a State highway department, etc., and is governed thereby.

In the original allotment of public lands six per cent was allowed for highways, which seems to be the reason for the well-settled rule that in the opening and improvement of public roads the landowner is entitled only to such redress as is given by statute, for his claim is a matter of grace and not of constitutional right: Snively v. Washington Township, 218 Pa. 249; Wagner v. Salzburg Twp., 132 Pa. 636; Lamoreux v. The County of Luzerne, 116 Pa. 195; Township of East Union v. Comrey, 100 Pa. 362; Workman et al. v. Mifflin, 30 Pa. 362, 370; Plank-Road Company v. Thomas, 20 Pa. 91; Shoe v. Nether Providence Twp., 3 Pa. Superior Ct. 137. The Commonwealth in the construction of public highways is in exercise of its sovereign authority and never liable for damages unless made so by express enactment.

Section 16 of the State Highway Act of May 1, 1905, P. L. 324, 325, provided for compensation, “In case any person or persons, or corporations, shall sustain damage by any change in grade, or by the taking of land to alter the location of any highway which may be improved under this act”; but by the Act of June 8, 1907, P. L. 510; this section was amended by striking out the words, “by any change of grade.” And under the latter no liability is incurred for damages resulting from the change of grade of State highways: Jamison v. Cumberland County, 234 Pa. 621; Same v. Same, 48 Pa. Superior Ct. 32; Same v. Same, 39 Pa. Superior Ct. 335; see also Saeger v. Commonwealth, 258 Pa. 239. Section 16 of the said Act of 1911, P. L. 519, provides that, “Before the commissioner shall undertake the construction, reconstruction, or improvement of any State highway on the plan of the State highways, wherein a change of existing lines and location is necessary and damage is likely to result to abutting property,......the owner or owners of said property, damaged thereby, may present their petition to the court of quarter sessions for the appointment of viewers to ascertain and assess such damages. The proceedings upon said petition and by the viewers shall be governed by existing laws relating to the ascertainment and assessment of damages for opening public highways,” with a further provision that the damages when ascertained shall be paid by the Commonwealth. The real question here is whether a change of grade constitutes a change of existing lines and location within the meaning of the section last above quoted. Notwithstanding the able and ingenious argument on behalf of appellants, we are clearly satisfied it does not. The lines of a highway as commonly understood, and as generally used in our statutes, refer to center and side lines and not to grade lines, that is, to horizontal rather than vertical lines. Besides, to come within the act, there must be a change of lines and location. A highway is located where it is laid out and established on the ground and that is not changed by the elevation or depression of its surface any more than is the location of a building changed by raising the roof.

As the words “change of grade” were inserted in the Act of 1905 and omitted from the Acts of 1907 and 1911, we must assume that a change of meaning was thereby intended: Rich v. Keyser, 54 Pa. 86; Endlich on the Interpretation of Statutes, sec. 384. In the Act of May 28, 1913, P. L. 368, imposing liability upon cities, etc., for damages caused by the construction and improvement of highways the words “grading” and “changing of grades” are inserted, which indicates that when the legislature intends to impose liability therefor it does so in express language.

The provisions above quoted from the Act of 1911, to the effect that the proceedings for the ascertainment and assessment of damages shall be governed by existing laws, etc., refers to the method of procedure for the collection of damages imposed upon the Commonwealth by the earlier clause of the section, but creates no new liar bility.

The title of the Act of 1911 (P. L. 468), includes, inter alia, a clause, “providing for the payment of damages in taking of property, or otherwise, in the improvement thereof [of highways].” And appellants earnestly contend that the use of the words, “or otherwise” in the title shows an intent to impose upon the Commonwealth liability for all damages resulting from improvement of State highways, including change of grade, and that the act should be so construed. Such contention cannot be accepted. The liability is imposed by the enacting clause, not by the title; while the latter is regarded as a part of the statute and may properly be considered in its construction (Halderman’s App., 104 Pa. 251, 259; Eby’s App., 70 Pa. 311, 314; Pennsylvania R. R. Co. v. Riblet, 66 Pa. 164; Yeager v. Weaver, 64 Pa. 425, 428; Brink v. Marsh, 53 Pa. Superior Ct. 293); yet the title cannot give vitality to a subject omitted from the body of the act; for while a statute cannot be broader than its title, the title may be broader than the statute; if so, the latter must control. Neither the title nor body of the Act of 1911 refers to damage for change of grade, and it cannot be written into the enacting clause merely because it might come within the general provisions of the title. “It [the title] can never control the plain and unambiguous meaning of language of the statute”: Endlich on the Interpretation of Statutes, sec. 59. To like effect see opinion of the same eminent author and jurist in Commonwealth v. Moorhead, 7 Pa. C. C. R. 513. “The act may be valid although its title is broader than the act itself”: 36 Cyc. 1032. In our view it is unnecessary to pass upon appellee’s contention that the word “taking” applies to the acquisition of property by condemnation and the words “or otherwise” to its acquisition by agreement.

The change of grade of an existing highway is not the taking or application of private property to public use within the inhibition of the clause of Sec. 10 of Article I of the Constitution, which says, “nor shall private property be taken or applied to public use without authority of law and without just compensation being first made or secured.” And, under the authorities, it is clear that Sec. 8 of Art. XYI of the Constitution, requiring corporations and individuals invested with the privilege of taking private property for public use to make or secure compensation for the property taken, injured or destroyed, has no application to the Commonwealth engaged in the improvement of State highways.

In Allison v. Bigelow, 68 Pa. Superior Ct. 219, there was an actual taking of land by the Commonwealth, which controlling fact distinguishes that case from the present.

A full consideration of the present case will be found in State Highway Route No. 72, 71 Pa. Superior Ct. 85. As there is no constitutional or statutory liability upon the Commonwealth for the injury complained of, the Superior Court properly rejected appellants’ claim.

The assignments of error are overruled and the judgment of the Superior Court is affirmed at the costs of appellants.