Hare v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Co.

Opxniojst by

Oblady, J.,

In order to facilitate its increasing business the defendant purchased a tract of land at Sheraden station upon which there was located a public road, and in order to adapt the land to its purposes, the public road was relocated and an overhead bridge was constructed to cany the road over the railroad tracks. Subsequently the borough of Sheraden was erected, and it included within its boundaries the land purchased by the railroad company, the relocated public road becoming a public street of the new borough. After these changes were effected the plaintiff purchased a tract of land adjoining the railroad, and the public road was a common boundary between the plaintiff and the defendant.

To meet the exigencies of the railroad company the location of the public road was changed several times, until in 1896 a final location over hilly ground was adopted, but, in order to make an easier grade for local travel and a street railway company, it was necessary to change the natural grade of the road. There were conferences between the railroad company and the borough officials in regard to the change of grade, and the suggestions of the railroad company were adojrted in every respect. A futile attempt was made to enact an ordinance so that the change of grade should be made apparently by the borough, but it is manifest that the ordinance was simply a means to an end, as the change was made at the instance of, and for the benefit of, the railroad company. The surveys and grades were settled by its engineers, who located and determined the work on the ground, which work was done under a contract with the company.

In the doing of this work it was necessary to change the grade of the public road in front of the plaintiff’s premises by making an embankment which varies from ten to fourteen feet in height. It is conceded that the plaintiff has suffered damage by the change of grade, and the only questions are as to who is liable for the damage and how should they be assessed. The action is in trespass, and the right to recover damages from a street railway company when the latter locates and constructs its railway on a public road without the consent of the abutting property owner, is so clearly established in Penna. R. Co. v. Duncan, 111 Pa. 352, Jones v. R. R. Co., 151 Pa. 42, Penna. Co. v. R. R. Co., 151 Pa. 339, Thompson v. The Citizens’ Traction Company, 181 Pa. 131, and Becker v. Lebanon, etc., Street Railway Company, 188 Pa. 484, 492, and the cases therein cited, that it is not necessary to look for further authority to sustain the proceeding. While the borough and the street railway company were associated with the defendant in the trespass they were so in name only. The plaintiff is powerless to change the embankment, which is a permanent structure, an additional and continuing servitude on his land within the highway and within his property lines.

The rule by which the damages should be ascertained was correctly stated by the learned trial judge in the charge covered by the third and fourth assignments of error.

The judgment is affirmed.