The opinion of the court was delivered, November 5th 1863, by
Read, J.We have already decided the Act of 16th May 1857 to be constitutional, and we see no reason to except the proviso to the 11th section from this ruling. The assessment upon the lot of the plaintiff in error was regularly made under an ordinance providing for assessing the damages sustained by any property, from the grading of any street, lane, or alley, upon any property that may be benefited thereby. The damages sustained by the property of Mrs. Roe were the real destrhetion of seven houses, and the injury of two nlore, by the grading of Washington street. The appraisement made was of these damages, and they were assessed upon property benefited thereby, including the lot of Dr. Wray.
The benefit bestowed and the amount' of damages are conclusively fixed by the assessment. But it is objected that the damages are consequential, and come within the case of O’Connor v. Pittsburgh, 6 Harris 187. Chief Justice Gibson says, p. 190, “ The loss to the congregation is a total one, while the gain to holders of property in the neighbourhood is immense. • The legislature that incorporated the city never dreamed that it was laying the foundation of such injustice, but as the charter stands it is unavoidable.” It was to remedy this great injustice that the charter was altered by the Act of 16th May 1859, and the legislature, following out the hint of the chief justice, provides that such damages shall be assessed, and shall be paid, not by the corporation, but by the property holders.benefited thereby. - We are of opinion there was no defence to this claim, and that the court were right in entering judgment for the plaintiff on- the case stated.
Judgment affirmed.