Hays v. Borough of South Easton , 10 Pa. Super. 390 ( 1899 )

Opinion by

Smith, J.,

In adjusting the burden of municipal improvement, each property owner is to be credited with his contribution, in property injured, taken or destroyed, and charged with the benefits to his property from the contributions of others. The measure of liability, between each owner and the public, is based on the difference between his contribution and the benefit he receives; between the value of his property previous to the improvement and its value afterwards, as affected by the improvement. If its value be made less, he is to be compensated for the loss; if made greater, he is to be assessed for the increase.

When the municipality, in its work of improvement, appropriates only the land, the problem of adjustment and compensation is comparatively simple. In the case before us, had the borough constructed a sewer across the plaintiff’s land, the meas-lire of damages would have been the difference between the value of the land affected by. the improvement, before its construction, and the value afterwards, as affected by the easement thus created, less any increase of value arising from its construction. But the borough, instead of constructing the sewer, appropriated one already constructed by the landowner. This substituted a permanent servitude for the use which otherwise the owner could terminate at pleasure. His contribution to the improvement, therefore, was the easement thus created, and the expense of constructing the sewer, from which the borough was, by the act of appropriation, relieved. On the other hand, it is difficult to see how this proceeding could benefit the owner (except to relieve him from future maintenance of the sewer), or increase the value of the property affected by the improvement, since all the benefits to be derived from the construction of the sewer were already enjoyed. Yet, if any benefit is to be found, it should be charged to the owner.

If a natural water course existed on the plaintiff’s land, the diversion thereto of water which otherwise would not reach it is an enlargement of the servitude for which the landowner should be compensated. If the general sewage of the borough, also, is turned into the water course, the servitude becomes still more onerous. If it was necessary or desirable to substitute an artificial sewer for a natural water course, such a sewer became a municipal improvement, to be paid for as other public sewers are paid for

It is not material whether the borough had, previous to the trial, diverted to the sewer water that did not naturally flow through the gully in which it was laid; it is sufficient that, by the appropriation of the sewer as part of its general system, the borough acquired the right to use it as a conduit for water from all sources. The damages are to be measured by the whole extent of the servitude to which the land is thus subjected, rather than by the actual quantum of use at any particular time.

Thus the elements from which the measure of liability is to be determined are apparent. The landowner is to be charged with the benefits to his property arising from the improvement made by the borough. He is to be credited with his contribution to this improvement in property taken, injured or destroyed. In the present case, this contribution embraces the peimanent and more onerous servitude imposed on the land, and the value of the sewer which the borough has taken for public use. This value is not necessarily fixed by the amount paid by the owner for its construction; the true measure is the cost of an adequate sewer, at the time of the taking, not exceeding the actual cost of the sewer taken. It does not dispose of the plaintiff’s claim to show that his land was worth as much after his sewer was taken as before. The appropriation of the sewer is a taking of private property for public use, for which the owner is entitled to compensation, though the taking may leave the land across which it was built worth as much as before. Benefits and injuries to the land stand by themselves, to be taken into account as items of debit and credit. A taking of property which, in effect, compels the owner to contribute more than his due proportion to the improvement, stands by itself, and is to be taken into account aside from the balance resulting from a comparison of benefits and injuries to other property.

While the course of the trial in the court below was not strictly along the lines here indicated, it was not in conflict with the principles now stated. Under these principles none of the specifications of error can be sustained, and, as the plaintiff is not here complaining of the verdict, the judgment is affirmed.