Opinion by
Mb. Justice Mitchell,Appellant’s amended statement is a petition under the act of May 16,1891, P. L. 75, for the appointment of viewers to assess damages for a change of grade of Forty-fifth street. The city of Philadelphia set up in its answer that in a prior proceeding in the quarter sessions for the opening of said Forty-fifth street, the petitioner had expressly waived his claim for damages for his land taken by the opening, and therefore was now barred from his present claim. The court below sustained this view by discharging the rule for the appointment of viewers.
The waiver must be either by estoppel or by intention.
First. The claim of a property owner against the city for the opening of a street is a single.claim for the depreciation in the value of his land, though it may include various elements such as the value of the part actually taken, and the injury to what is left, whether the latter is by reason of diminished size, inconvenient shape, difference of grade or other attendant circumstances. It was accordingly held in Pusey v. Allegheny, 98 Pa. 522, and other cases that have followed it, including Righter v. Philadelphia, 161 Pa. 73, that the claim must be asserted as an entirety in the same proceeding, and if any part of it be omitted the owner will be estopped from setting it up in a subsequent action. To this rule however there is the necessary limitation that the claim need only include elements already' existing. No proceeding can be required to include rights of action which are yet inchoate. Where, therefore, “the grading occurs as a separate act of the public authorities, and so long after the opening, of the street that the assessment of damages *35at the time of the appropriation cannot include those resulting from the grading, the latter may be ascertained by a second view : ” Pusey v. Allegheny, supra.
The present case comes within tbe exact terms of the exception. The report of the viewers to open Forty-fifth street was confirmed and the decree thereon made June 25, 1887. The ordinance under which the grading of the street was done was not passed until March 10, 1888. The right to damages for change of grade does not accrue until the actual change is made on the ground: Ogden v. Philadelphia, 143 Pa. 430. When therefore the appellant, in the proceeding in the quarter sessions to open the street, disclaimed “ any damage for the property taken by the opening of said street,” there was no necessary legal implication that ho thereby waived a claim for damages by change of grade which was as yet inchoate, and for which no right of action yet existed. There was therefore no estoppel by virtue of such disclaimer against the assertion of the other right when it should arise. The opening and grading were separate acts, one through the operation of the court of quarter sessions, and the other through an ordinance of councils, and the latter was in the language of Pusey v. Allegheny already quoted, so long after the former that “ the assessment of damages at the time of the appropriation cannot include those resulting from the grading.”
The argument of the appellee that by this construction the advantage to the city of having the complete damage assessed in a single proceeding will be lost, and that property owners may by dedication in advance or by proceedings in the quarter sessions secure an opening without the risk of assessment for benefits, would be a good argument ad inconvenientem addressed to the lawmaking power, but even then there is another horn to the dilemma, which is that the assessment of damages for a change of grade not yet actually made is speculative, as it is compensating the owner in advance for an injury not yet done to him, and which in fact may never he done. This is the view that was successfully urged by the city of Philadelphia in Re Plan 166, 143 Pa. 414, and the rule was there settled that no damages are recoverable for change of grade until the actual work on the ground is begun. By this rule, as was there said, “ The city is not exposed to the danger of speculative damages *36for a change that may never be made in fact, while the property owner will still be compensated, but for an actual change when it is made on the land.” The subject has inherent difficulties because no general rule can be formulated which will invariably work justice to all parties. But the vigilance of the city officers can in most cases protect the city's interest by seeing that dedications of land or waivers of damages for opening are not accepted unless they include waiver of damages as to grade, and that ordinances for opening shall also provide for grading, so that the acts shall be concurrent, and claims for both be necessarily presented in the same proceeding. It may also be worth while for the lawmaking authorities to consider whether the jurisdiction of the quarter session's over the opening of streets, at least in cities of the first class where damages are so important a part of the expenses of government, should not be limited or taken away, if it may constitutionally be done, and the whole subject left exclusively to the city councils where it properly belongs. The authority is not in its nature judicial but legislative, and its survival in the quarter sessions is a remnant of the colonial days, when that tribunal, before the accurate definition and separation of constitutional powers, exercised a general and very miscellaneous jurisdiction over the great body of local affairs. That the jurisdiction in the rural parts of the state where roads are matters of general concern, and the land damages for opening are relatively small, is still beneficial, and the public interest is watched and subserved, is probably unquestionable, but it is patent to every one who has presided in the quarter sessions of Philadelphia during the past twenty years that the opening of streets by proceedings under the road laws is always at the instance and for the benefit of private enterprise, and the public necessity or convenience alleged as a basis is, like the right of eminent domain under the corporation laws, the thinest kind of a mask for individual profit.
Secondly. The waiver of appellant’s claim to damages may extend to and include damages resulting from the opening at the grade on the city plan, if such was in fact the intention of the waiver at the time, and it is argued for the city that such must have been the intention as the appellant must have known that when the street was opened it would be at the established grade. We do not however think this result follows, certainly *37there is no sufficient evidence of it in the appellant’s petition and the city’s answer, which are all the court had before it. The waiver as it is set out in the viewers’ report is of damages for “ property taken by the opening,” and as we have seen the municipal acts of opening and grading were not cotemporaneous, but the first was ended by a final decree of court more than eight months before the latter was authorized by ordinance. The damages for change of grade are not within the letter of the waiver, nor do the circumstances show that they were within the intent. But this is not all. It appears in the appellant’s statement that at the very time when this waiver was made in the proceeding to open, he had a separate proceeding of his own, pending in the same court, for the assessment of his damages by the change of grade. It is true that it was subsequently held that he had no right of action for the paper-change, and therefore the proceeding was not only premature but in the wrong court: Re Plan 166, 143 Pa. 414. But the fact that appellant then had such an action pending, which he was pursuing for the assessment of these very damages, and which was not abandoned nor even referred to, is conclusive that the waiver was not intended to cover anything more than its literal terms included,—the damages for property taken in the opening.
There was no waiver therefore, either by estoppel or by intention, of the damages claimed in this proceeding, and the appellant was entitled to have viewers appointed and the case proceed regularly according to the statute.
This result is not in conflict, as is argued, with the decision in Righter v. Philadelphia, 161 Pa. 73. In that case the opening and grading were done at the same time, and the ground of the decision as stated by our brother Fell is that as an action must have included both elements of damage, the waiver must be presumed to have been intended to include both. “ If no dedication had been made, and the city had done precisely what it did—opened and graded the street at the same time—the plaintiff’s action for the opening would have included his damages for the grading. . . . The question is one of intention to be ‘gathered from the deed, with the aid of the circumstances surrounding the parties.” And the most potent factor among such circumstances is the opening and grading at the same *38time, in which respect the case differs from the present. That was an illustration of the rule laid down in Pusey v. Allegheny, this is an example of the exception.
Judgment reversed and procedendo awarded.