Kline Et Ux. v. McKeesport , 83 Pa. Super. 358 ( 1924 )

Argued April 25, 1924. In 1892, the City of McKeesport established by ordinance a grade on Ash Street. In 1914 the city graded the street. The plaintiffs asked damages equivalent to the difference in value before the improvement was made and immediately after. The position of the city is that since the building upon the property did not conform to the grade established in 1892, they cannot recover damages by reason of the change from the actual grade of their house and that established by the proceedings of 1914. This would be true if it appeared that the house was built since 1892, for it has been held repeatedly that "where a grading is once established if an owner builds without regard to the grade lines, he cannot recover for injury to his lines when the grade is done": Devlin v. Philadelphia, 206 Pa. 518. But it is useless for the city to say that the owner of the house did not conform to the grade of 1892 when we have no proof that the house was built subsequent to that date. Counsel for the city takes the position that this is part of plaintiff's case but we do not share his view. The plaintiffs having shown ownership at the time the grading was done, and having proved their injury and that the improvement was made by the proper authorities of the city did all that was required of them. The fact that the owner did not conform to a certain grade when the house was built is a matter of defense. It was part of the city's case to offer the ordinance of 1892. "Its existence must be proven like any other fact": Lawrence McFadden Co. v. Philadelphia, 59 Pa. Super. 44. It was equally the city's part to prove that at the time the ordinance was passed, the property had not been improved; that the building was built after the passage of that ordinance and subject to the grade established in it.

There are but three assignments of error. The first that the court erred in refusing to charge the jury, "Unless the building damaged conformed with the grade established in 1892 verdict must be for the defendant." As we have pointed out there was no proof when the building was built, and therefore, the court could not have affirmed that point. The second is that there was error in refusing to grant defendant's motion for a new trial. There is nothing before us that would warrant us to sustain this assignment. No abuse of judicial discretion appears. The third is that the court erred in refusing the defendant motion for judgment non obstante veredicto. As there was no motion for binding instructions, this point cannot be pressed.

All the assignments of error are overruled and the judgment is affirmed.