Franklin Street

Opinion by

Rice, P. J.,

The proceedings relative to the widening of Franklin street between Germantown avenue and Emlen street, preceding the appointment of viewers to assess the damages, are fully set forth in their first report, and we need not incumber this opinion with a recital of them.

On November 12, 1897, while the proceedings before the viewers were pending, an ordinance was approved repealing so much of the ordinance of December 16, 1896, as authorized the opening of Franklin street on the southeast side between the streets above named.

On December 13, 1897, the city filed a petition, upon which the court granted a rule to show cause why it “ should not be permitted to withdraw from the condemnation proceedings, and the appointment of the jury in the above case be set aside.” An answer was filed by the appellant and on Deeember 27 the petition was refused. In the following May the jury of view filed their report awarding the appellant and others damages as for a taking of their land. Exceptions were filed by the city, and on February 4, 1899, the court made the following order: “ The exceptions of the city of Philadelphia numbered 1,30 and 39 are dismissed, the other exceptions are sustained, and the report is referred back to the jury to ascertain 'and report what damages, if any, have been suffered by the claimants, or any of them, by reason of the city’s proceedings and their abandonment.” In due time the viewers reported, inter alia, that by reason of the city’s proceedings and their abandonment the appellant had suffered damages in the sum of $1,239.70, made up of loss of rent, expert witness fees, counsel fees, costs paid on filing original petition for jury of view, and for serving notices. Exceptions were filed by the appellant which were overruled. After confirmation of this report this appeal was taken. The matters assigned for error are the overruling of these exceptions. They are fully set forth in the assignments and need not be repeated here. It is sufficient to say, that they are based on the general proposition that the city had proceeded too far to recede from its action and thereby escape liability as for a taking of the appellant’s land.

The order of December 27,1897, refusing the city’s petition, and the order of February 4, 1899, sustaining the city’s exceptions and referring the report back to the jury of view are not necessarily inconsistent adjudications upon the question of the city’s right to discontinue the widening proceedings. The viewers had been appointed on the appellant’s application not the city’s, and even if the proceeding to open the street to the increased width was discontinued,'he was nevertheless entitled to recover the damages he had actually sustained prior to that time. As no opinion was filed we have no means of knowing the precise reason which moved the court to refuse the petition, but it is allowable to suppose that it was because the court deemed it proper to have the damages above referred to assessed by the viewers already appointed. But be that as it may, it is clear that the order of December 27 refusing to discharge them was not such an adjudication of the appellant’s right to recover full damages as for an actual taking of his land as preeluded the court from re-examining the question when the report of the viewers came in, and making such order as the facts and circumstances called for.

The order of February 4,1899, was, in legal effect, an adjudication, first, that the city had the right to abandon the proceeding to widen the street; second, that the repealing ordinance. was an abandonment thereof; third, that the appellant was entitled to such damages only as he had sustained “ by reason of the city’s proceedings and their abandonment.” The second report of viewers subsequently confirmed by the court was made on that theory. Therefore the question raised upon this appeal may be fairly stated as follows: At the time the repealing ordinance was adopted had the city the right to discontinue the proceeding to open the street to the increased width and thereupon to be relieved from liability for damages except as above stated, or had the proceedings gone so far at that time that the city was bound to take the land and pay for it, or to pay for it whether it took it or not?

It is safe to say, in general, that the courts have been careful not to lay down a rule upon this subject which will prevent municipal corporations from receding from proposed action of this kind before the landowner has obtained final judgment for his damages, unless the corporation has in the meantime taken actual possession of the land. See generally upon this subject, Elliott on Roads and Streets, 209, 280, and 2 Dillon’s Mun. Corp. sec. 608. It is proper that this view should be taken. The public good, or the inability of the treasury to fairly bear the burdens, may require that it should recede, and if the landowner is fully compensated for the actual injury he has sustained, no injustice is done in permitting the municipality to do so. A careful examination of the Pennsylvania cases bearing on the question has failed to convince us that a stricter rule should be applied in the present case.

The point decided in Myers v. South Bethlehem, 149 Pa. 85 was, that a final judgment for damages for the opening of a street is conclusive, although appeals of other property owners are undisposed of, and, subsequent to the judgment, the ordinance for the opening of the street is repealed by the borough councils, and although there was no actual taking or occupation of the land. It is plain to be seen that this ruling does not apply here. The same is true of the ruling in Philadelphia v. Dickson, 88 Pa. 247, the point of which was that a resolution of councils directing the commissioner of highways to notify a landowner that at the expiration of three months they would order the opening of a particular street through his property was such an order to open as would authorize the assessment of damages, and establish the right to sue therefor, after the expiration of one year from the confirmation of the assessment. In both of these cases the damages of the property owner had been ascertained, and the liability of the municipality therefor had been finally adjudicated; in one case by a judgment on the verdict of a jury, and in the other case by a decree confirming the report of the jury of view, which was in effect a final judgment. See Sedgeley Avenue, 88 Pa. 509.

On the other hand, it was held in Moravian Seminary v. Bethlehem, 153 Pa. 583, that it was not too late to permit the municipality to discontinue the proceedings, “ on proper and adequate terms,” even after the verdict of a jury on an appeal from the award of damages by the viewers. In Funk’s Admr. v. Waynesboro School District, 18 W. N. C. 447; s. c. 4 Cent. Rep. 298, the school district had the right of immediate entry by reason of the provision of the Act of April 9, 1867, P. L. 51, pledging the funds to be raised by taxation as securitj’- “ for all damages done and suffered or which shall accrue to the owner or owners of such land.” It also appeared that whilst the directors had not taken actual, permanent possession of the land which interfered with the occupancy of the owner, yet they had entered prior to the view and staked off the land they intended to appropriate. It was nevertheless held that the proceedings might be discontinued even after reports of viewers and reviewers assessing damages had been confirmed nisi.

Stress is laid on the fact that the city gave its own bond conditioned for the payment of “ any damages which, in any proceedings in the court of quarter sessions duly authorized by law, may be awarded and confirmed as payable by said city to the person or persons judicially ascertained to be entitled to receive the same.” It is urged that the filing of this bond gave the city the right of immediate entry, which is true, but its right was no more complete than that of the school .district in the Waynesboro case. Therefore the two causes cannot be distinguislied upon that ground. We know of no case which holds that a right of entry is equivalent in effect to an actual entry and exclusion, of the owner from the possession in precluding a municipal corporation from claiming the benefits of an abandonment of the proposed taking before final judgment for the landowner’s damages.

The whole case after all depends upon the question whether or not the notice to the appellant to remove his building within ten days was such an act of dominion over the property as amounted to a “taking.” The appellant’s counsel concedes that there must have been an actual taking as distinguished from a right of immediate entry; his main contention is that this act followed by the removal of the appellant’s tenants brought the case within the principle of Wood v. Hospital, 164 Pa. 159. But in that case it appeared in the testimony and in the petition of the trustees of the hospital, that they had entered upon and occupied the land, as they had a right to do, because by the terms of the act the state was made surety for the compensation guaranteed to the landowner by the constitution. The case was not decided, however, upon the ground that the trustees had made a “ paper ” appropriation of the land and had the right of entry, but upon the ground that they had taken actual possession. Chief Justice Stebrett took pains to recite the salient facts at length “ for the purpose of showing ” as he said, “ that the action of the trustees cannot be consistently regarded in any other light than as an absolute and permanent taking, appropriation and occupancy of plaintiff’s land for hospital purposes under the act of 1891; such a taking and occupancy as by operation of law invested trustees with title to the land, and divested plaintiff of every right thereto save that of compensation guaranteed by the constitution. For the payment of that, the state by express terms of the act is made surety. There is no ground whatever, for the position that defendant’s entry and occupancy of the land was tentative or temporary, for the purposes of designating boundaries and initiating proceedings looking to a future aproppriation and condemnation of the same for hospital purposes. The occupancy of the defendants under the lease had terminated, and thereafter they were in possession by virtue of their taking and occupying as owners under the right of eminent domain,” There would have been strong reasons for holding that this case rules the present case, if pursuant to the notice served upon him, the appellant had removed his buildings from the strip of land proposed to be taken, or had abandoned the land to the city. But he did not obey the notice. The most that can be said is that his tenants moved out of the buildings because they apprehended that the city was about to take possession of the land. The actual possession thereupon reverted to the appellant. He never delivered and the city never entered into possession. His possession was not disturbed by any work done upon the proposed improvement, for no work was done. He was injured it is true by the removal of his tenants after the notice served upon him and the consequent loss of rents during the time his premises were vacant. For-that injury he was entitled to full compensation, but we are unable to conclude that there was such a completed “ taking ” as debarred the city from discontinuing the proceedings upon payment of all the damages he sustained and all the expenses he had been put to. It is to be observed that no complaint is made in any of the assignments of error that the amount awarded him in the last report did not fully compensate him for all the injury he had suffered “ by reason of the city’s proceedings and their abandonment,” assuming that the city had the right to abandon them, or that the mode in which those damages were ascertained was improper.

Franklin. street of the increased width had been placed on the public plan more than two years before the adoption of the opening ordinance of December 16,1896. It is urged that, by the act of 1871, if a street is plotted on the city plans of a certain width, and the owner thereafter builds on any portion of that width, he can recover no damages therefor, though thus deprived of the beneficial use of his property, until the physical opening, which may in fact, never take place. This may be a hardship, but it is not one which results to the plaintiff from the adoption of the opening ordinance. As the repeal of that ordinance left him in the same situation he was in before it was passed, we are not convinced that a revocation of the action of the board of surveys was an equitable condition precedent to the right of the city to be relieved from liability as for an absolute and permanent taking, appropriatjpn and .occupancy of his land for street purposes,

The order is affirmed.