Opinion
October 28, 1932.
January 25, 1933.
Highways — Change of grade — No-abutting property — Damages — Non-suit.
On an appeal from an award of viewers appointed to assess the damages resulting to the plaintiff's property from a change of grade, the record disclosed that the defendant municipality lowered the grade of a street at a point where it intersected an avenue upon which the plaintiff's house abutted. The change of grade made it inconvenient for the plaintiff to reach her property from the street, in that she had to go up a steep grade. The defendant, however, did not shut off access from the street to the avenue. There was also evidence that the plaintiff could approach her home by a system of streets from the other direction and she would suffer no greater inconvenience than other persons in the vicinity. At the trial the plaintiff did not offer any testimony to show that the condition of the intersection would be permanent and the court below entered a non-suit.
In such case where the plaintiff failed to establish that she suffered injuries which were permanent, obvious, proximate, immediate and substantial, she was not entitled to damages and the order of the court below entering a non-suit will be affirmed.
Appeal No. 331, October T., 1932, by plaintiff from order of C.P. No. 2, Philadelphia County, June T., 1929, No. 1077, in the case of Bessie W. Cox v. City of Philadelphia.
Before TREXLER, P.J., KELLER, GAWTHROP, CUNNINGHAM, BALDRIGE, STADTFELD and PARKER, JJ. Affirmed.
Appeal from award of viewers appointed to assess damages. Before GORDON, JR., J.
The facts are stated in the opinion of the Superior Court.
The court entered a non-suit. Plaintiff appealed.
Error assigned, among others, was the refusal of plaintiff's motion to take off the non-suit.
B. Graeme Frazier, Jr., and with him Bertram G. Frazier of Frazier Frazier, for appellant.
James Francis Ryan, Assistant City Solicitor, and with him David J. Smyth, City Solicitor, for appellee.
Argued October 28, 1932.
The plaintiff is the owner of property on the west side of Park Avenue distant 186 feet from what was formerly Green Lane, but now Spencer Street. By ordinance of the City of Philadelphia, the bed of the old street was incorporated into the new one, the street broadened and at the intersection of Spencer Street and Park Avenue there was an offset of 3 1/2 feet by reason of the grade, Spencer Street being lower than Park Avenue. During the progress of the work access from Spencer Street to Park Avenue was entirely barred, but at the conclusion of the work there was a road of temporary character opened, so that wagons or autos could pass from Spencer Street into Park Avenue; although in rainy weather the passage for heavy vehicles was difficult. The continuity of the sidewalk was interrupted and pedestrians were compelled to use the street in passing from Park Avenue to Spencer Street. Park Avenue from plaintiff's property southerly to Champlost Avenue, which is the next street to the south running parallel with Spencer Street, was in a bad condition, filled with deep ruts and almost impassable during rainy weather, but we do not think that this situation is involved in the present inquiry. However, there is no doubt that the better way of approaching plaintiff's property before Spencer Street was graded was through that street, and not from the next street to the south. We wish to emphasize that there is still access from Spencer Street to Park Avenue. One can drive in and out although pedestrians must walk in the middle of the street. Plaintiff, herself, admits that one can come in and out over the roadway.
There is no question that where by reason of the municipality shutting off access at one end of a street a property is put in a cul-de-sac, the owner is entitled to recover damages for the deprivation of approach to his property, but the cases holding this do not apply to the present. There is no doubt that the access to the plaintiff's house is not as good as it was before Spencer Street was graded, but as we have stated the street is open to the public and used by the public, and affords access to plaintiff's dwelling. If plaintiff were successful in this suit she would recover damages not because access to her dwelling has been taken away, but because the street through which the approach is had is in bad condition. The damage she seeks to recover is the difference between the market value of her property before and after the change was made. It is for a permanent injury. The condition upon which the damages would be assessed would be on the assumption that it was continuing. If the city improves the situation and makes a good approach instead of the bad one that now exists, the property will resume its former value. There is nothing in the case to show that the condition of the street at the intersection of Spencer Street and Park Avenue is permanent. We may presume that the city will not allow the condition described by the witness to remain. If it does the plaintiff will suffer with the rest of the public, for if we can accept as verity the description given, the situation might constitute a public nuisance indictable at common law. Com. v. New Bethlehem Boro. 15 Pa. Super. 158. The plaintiff cannot claim damages merely for the grading of Spencer Street for her property is too far away from Spencer Street to have suffered any substantial, permanent or proximate injury from such grading. The inconvenience, she suffers by being compelled to go up-grade from Spencer Street a steeper grade than heretofore to reach her property is the same as all persons in the vicinity using the street must suffer. Howell v. Morrisville Boro. 212 Pa. 349, 61 A. 932. In order that she may recover she must have suffered damages which are permanent, obvious, proximate, immediate and substantial. Hoffer v. Reading Co. 287 Pa. 120, 134 A. 415; Bodemer v. Northampton Co. 101 Pa. Super. 492; Holmes Holmes v. P.S.C. 79 Pa. Super. 381. These elements are not present in this case.
The judgment is affirmed.