Tucker & Frankford Streets

Opinion by

Mb. Justice McCollum,

The damages awarded by the viewers were the direct consequence of work done by the Philadelphia and Trenton Railroad Company on its right of way adjoining the plaintiff’s property. It consisted of an elevation of the railroad tracks to a height which impaired his facilities for loading his goods on the cars. He claims that the city is liable to him for these damages on the ground that the act from which they resulted was necessitated by its change of the grade of Frankford street. It appears that, on the 29th of March, 1887, the councils, with the approval of the mayor, authorized a revision of the lines and grades of the city plans along the line of the Philadelphia and Trenton Railroad from Tacony street to Pennypack creek in the twenty-third ward, for the purpose of avoiding all grade crossings of the railroad between these points. In the ordinance authorizing this work it was provided that, before confirmation of the revised plans, the railroad company should file an approved obligation that it would, at its own cost and expense, change the elevation of its road at such points as in the revision of the plans might be found necessary in order to construct overhead or undergrade bridges, and, in accordance with the revision, construct all the bridges and other works incident thereto, within its right of way. In view of the proviso in the ordinance the latter majrbe regarded as a proposal by the city to the railroad company of co-operation in the abolition of the grade crossings of its road between the points named. The acceptance of this proposal by the railroad company was voluntary and in its, interest as well as in that of the city. It was followed by a confirmation of the revised plans and the physical change of the grade of Frank *339ford street in accordance with them. The work of lowering the grade of the street was done by the city, and the work of constructing the overhead bridge and raising the railroad tracks' to correspond with it was done by the railroad company.

While this proceeding was instituted for the purpose of assessing the damages the plaintiff sustained by the change of the grade of Tucker and Frankford streets, it was conceded in his testimony and found by the viewers that his property was not injured by any work done by the city on either of them. Tucker street was not opened beyond the railroad and there has been no physical change of its grade. His property does not abut on Frankford street and is not affected bjr the lowering of it. It was the elevation of the railroad tracks and that alone which caused the injury complained of, and this, as we have seen, was work done by the railroad company at its own expense within its right of way on which his property abutted. Access to the property on the side of it which has a frontage on the right of way was and still is exclusively by rail, but the elevation of the tracks has increased the labor and expense involved in receiving the materials from and loading the manufactured products upon the cars. In all other respects access to it is unchanged. The undisputed facts, therefore, present a case of highways crossing each other at grade, one of them created and controlled by the city, and the other by the railroad company. A mutual desire of these corporations to abolish grade crossings resulted in an agreement under which, to accomplish the common purpose, the city lowered its street and the company elevated its road. The outcome of the facts is a proceeding against the city for the recovery of the damages sustained by a' property owner in consequence of the elevation of the railroad.

The city contends that its change of the grade of Frankford street was not the proximate cause of the damages claimed, and it rests its contention, in this particular, on the plaintiff’s testimony and the report of ti^e viewers who distinctly found that the entire damage done to plaintiff’s property was “the result of the elevation of the tracks of the Philadelphia and Trenton Railroad Company.” It also contends that there is nothing in its agreement with the company which subjects it to liability for damages occasioned by the act of the latter. We think that, upon the undisputed facts on which the plaintiff’s *340claim is based, tbe city’s entire contention is sound, and the order of the court below setting aside the report of the viewers should be sustained.

In this conclusion we do not disregard or in the slightest degree qualify the principle on which Snyder v. Lancaster, 20 W. N. 185, and Mellor v. The City of Philadelphia, 160 Pa. 614, were decided. These cases are plainly distinguishable in their facts from the case at bar. In Snyder v. Lancaster, the opening of Filbert street was the direct cause of the injury complained of. The opening of the street took away from plaintiff’s house the lateral support it had and left it without a gable. In Mellor v. The City, access to plaintiff’s property by vehicles was cut off by the change of the grades of Oxford and Margaret streets. The injury complained of in the eases cited was the direct and proximate consequence of the opening of a street or a change of its grade. The principle on which they were decided is unquestionably sound but it is not applicable to the facts of this case.

The order setting aside the report of the viewers is affirmed.