Opinion by
Rice, P. J.,dissenting, December 20, 1895:
The appellant’s counsel contend that there cannot be any recovery by the claimants, because none of them was the owner of property within that part of Melon street which was vacated. They do not claim that they were not damaged—and in the face of the report of viewers, unappealed from, cannot do so— but do contend that there must be not only damage, but injury in the legal sense must exist.
To this latter proposition, I give my unqualified assent, but I am not prepared to concede that the loss which the claimants have sustained in consequence of the closing up of Ninth street and the eastern end of Melon street, is damnum absque injuria.
The right to compensation for loss sustained by a property owner in consequence of the vacation of a street is, in Pennsylvania, purely statutory. It was clearly decided in Paul v. Carver, 24 Pa. 207, that the legislature has power to vacate streets and highways which, in its judgment or that of the municipal authorities to whom the power is delegated, are useless, inconvenient or burdensome, and this without providing compensation to the owners of land incidentally injured.
Judge Black said,: “ Surrendering the right of way over a public road to the owners of the soil is not taking private property for public use, and the proprietors of other lands incidentally injured by the discontinuance of the road are not entitled to compensation.”
*87This doctrine was in harmony with the ruling in O’Connor v. Pittsburg, 18 Pa. 189, that “the constitutional provision for the case of private property taken for public use, extends not to the case of property injured or destroyed; but,” added Chief Justice Gibson, “it follows not that the omission may not be supplied by ordinary legislation.”
The injustice which constantly resulted from the ruling in this case—an injustice which Chief Justice Gibson thought so great that it ought to be remedied by appropriate legislation was to some extent provided against by section 10, art. I, and section 8, art. XVI, of the constitution of 1874; but it has been held, for reasons which in no way affect the present case, 'that an injury caused by the vacation of a street is- not within these constitutional provisions. No private property is “taken or applied to public use ” within the meaning of the section first referred to, or “ taken, injured or destroyed by the construction or enlargement of their works, highways or improvements,” within the meaning of the section last mentioned: McGee’s Appeal, 114 Pa. 470.
But it is too plain for argument, that a property owner may suffer injury in consequence of the vacation of a street, not only different in degree, but different in kind, from that suffered by the general public. It is the same kind of an injury which he suffers from a change of grade; and, upon the same principles of justice and equity which were recognized in O’Connor v. Pittsburg, and which led to the adoption of the constitutional provisions above referred to, the state, although as the sovereign having power to inflict it without compensating him, may give such compensation, and provide for its payment by the state, or the municipality, or its apportionment amongst the persons or properties benefited. This was expressly decided in the construction of the very act under which the present proceedings were had: In re Centre Street, 115 Pa. 247.
“ That the commonwealth was under no constitutional obligation to pay for the damage caused by vacating a street was decided in Paul v. Carver, 24 Pa. 207, and is so held under the present constitution: McGee’s Appeal, 114 Pa. 470. But it has never been held, nor, so far as I am aware, seriously contended, that the legislature might not put such obligation upon the commonwealth or its agents by statute. The princi*88pie of compensation was extended by the present constitution so as to include in certain cases, not only property taken, but property injured. This provision might have been, and, to some extent was, in fact, anticipated by statutes providing for such compensation by assessments in the nature of special and local taxation:” Howard Street, 142 Pa. 601; Hare v. Rice, 142 Pa. 608: Mitchell, J.
The legislature, in the exercise of its undoubted power, having guaranteed compensation for injury caused to private property by the vacation of a street, the question arises whether the right is limited to properties abutting on the portion of the street vacated. No one could, or does, contend that an unqualified affirmative answer to this question would be justified upon any principle. If, for illustration, Ninth and Tenth streets had been vacated, we think no one would say that the properties of the claimants abutting on that portion of Melon street lying between the two streets vacated would not suffer injury in a legal sense, or that the legislature did not intend to give compensation for the kind of injury which those properties would sustain. Undoubtedly, the legislature might refuse compensation in such a case, but has not done so.
But it is said that, in the case supposed, access to the property of the claimants would be wholly destroyed, while in the case in hand access by way of Ninth street only is taken away. But why should the statute be construed to give a right to compensation in the one case, and not in the other? What authority is there for saying that a claimant must show that he has been wholly deprived of access to his property, in order to entitle him to recover damages ? Take the case in hand—the claimants may still go to and from all parts of the city by way of Tenth street, but are now compelled to go further to reach points to the eastward. This is an inconvenience, and, by the diversion of travel, may cause a depreciation in the value of their property; but it is generally held to be the same kind of inconvenience as that which all the inhabitants of the city, traveling that way, must suffer. It is an interference with the right of passage over the street which was before enjoyed, and is not of itself a legal wrong for which a private suit at common law could have been sustained.
It may be conceded that it is not an injury for which the *89claimants would be entitled to recover damages under the statute ; but, in addition to the right of passage which they enjoyed in common with the general public, was their right or interest ih the street as a mode of access to their properties, and there may result, from a destruction or impairment of access, a special injury which would not be sustained by the other members of the general public. It would seem to be manifest that the conversion of an open highway connecting with another street into a cul de sac would, as to the properties thus deprived of one mode of ingress and egress, be evidence of a special injury, possibly differing in degree, but not in kind, from that resulting from closing up both ends of the street.
A variety of special circumstances—the width of the street upon which the properties abut, the grade, the kind of traffic, the distance—would enter into the determination of the amount of damages sustained. In some cases, they might be . very trifling; but cases may very readily be imagined where they would be very serious; and I am not prepared to say that the mere fact that the properties do not abut on the portion of the street vacated would be conclusive upon the legal question—whether such an act would be an injury.
The learned counsel for the appellant frankly concede that the question is a new one in Pennsylvania. Therefore, we are not prevented by any authoritative precedents from giving that interpretation to the statute which will carry out the manifest intention of the legislature to remedy an injustice, which Paul v. Carver showed was possible under the law as it stood before.
I agree that some well-defined principle ought to control the assessment of damages; but there is a difficulty in laying down a general rule applicable to all cases, and the rule contended for seems to derive its chief support from the supposed inconveniences that would result, if it is not adopted.
This argument is not without force, but it seems to me that it is given too much weight. It is said if the rule contended for is.not established, where will be the limit to claims for damages ? Questions like this can be addressed with much more force to the legislature than to the courts; but, after all, the difficulties which would arise from a more liberal interpretation of the statute are more imaginary than real; they are not *90greater than those which might have been, and indeed were, anticipated from the introduction into the fundamental law of the principle of compensation for the injury and destruction, as well as the taking, of private property in the exercise of the right of eminent domain. It is not to be supposed that the legislature were ignorant of the difficulties which are now urged upon our consideration, but they were not of sufficient gravity to deter them from enacting a law broad enough in its terms to secure compensation to these claimants, if, in fact, they have suffered substantial injury of a special nature. It is as broad as the constitutional provision; the injury is of the same kind as that caused by a change of grade; there is no reason for a stricter rule in one case than in the other, and there is no authoritative decision which requires us to make a distinction.
If I am correct in this, then the language of Chief Justice Stereett, in Mellor, Ex’r, v. Phila., 160 Pa. 614, construing the constitutional provision and applying it to a case of damages, caused by a change of grade, might appropriately have been written for this case. “ Defendant’s contention was that this provisión is inapplicable to any of the cases under consideration, because neither of the properties fronts or abuts on either of the streets, the grade of which was changed. This would, indeed, be a very narrow and unreasonable construction of the words above quoted, especially in view of the history and object of the constitutional provision. . . . There is nothing in the phraseology of the section that can be even tortured into a limitation of its provisions to property fronting or abutting on the particular work, highway or improvement, by the construction or enlargement of which said property was injured or destroyed. The section in question cannot be thus narrowly construed without reading into it words which are not in it, and were never intended to be there.”
The case is like this in so many parts that it seems to me that it might be regarded as ruling it. There, access to the properties by way of Orthodox street was destroyed by lowering the grade of the latter street, but Trenton avenue, upon which the properties abutted, and Oxford street which it intersected, remained as before. Here, access to the properties by way of Ninth street was destroyed by the vacation of that street and the eastern end of Melon street; but the portion of the latter *91street on which these properties abut, and Tenth street, which it intersects, are unchanged. The outlet in that direction remains as before. In neither case was access to the properties wholly destroyed, but in both cases, the conversion of the highway in front of them into a blind street was evidence of an impairment of access to the properties which might be proper to submit to a jury, under appropriate instructions of the kind given in the cited case.
Whether the injury was as great in this case as in that, it is impossible to say without having a knowledge of all the facts, which would have been brought before the court if an appeal had been taken, as was done in the case cited, but cannot come before the court on exceptions to the report. It is true, we have the undisputed facts—that the properties do not abut on the part of the street vacated; that the street is nearly 50 feet wide, and that the outlet to the westward is the same as before. If these facts are sufficient in law to base a conclusion that the claimants have not sustained an injury which would entitle them to recover the damages allowed by the viewers; if, in other words, we can say, as a matter, of law, that access to their properties has not been impaired, then the report ought to have been set aside. But this is what we must declare if we sustain the appellant’s second, third, fourth, ninth and eleventh assignments of error, and I do not think we can do so and at the same time harmonize our decision with the just principle upon which a recovery was allowed in Mellor v. Philadelphia..
It is argued that an affirmance of the judgment of the quarter sessions in this case will be in the face of every authority upon the question. I have endeavored to show that such a ruling would be in entire harmony with the principle enunciated in Mellor v. Philadelphia, and, if time and space permitted, I think that it could be shown that it is not in conflict with the great weight of authority. It is true, some of the cases do lay down the rule that, where a part of a street is vacated, those whose property does not abut upon the vacated portion, and who have access to their property by the remaining portion of the street, cannot complain.
In some of the states, especially in Massachusetts, this rule has been adhered to with great strictness, but even there the principle was thus explained in one of the latest cases: “ It is *92not enough to show that the shop has suffered by the diversion of travel, or that the owner finds travel less convenient at a distance from his place, if the access to the system of streets remains substantially unimpaired: ” Stanwood v. Malden, 157 Mass. 17. In that case the court said that the means of access were ample, and in the leading ease in that state, Smith v. Boston, 7 Cush. 254, the court said: “ The petitioner has free access to all his lots by public streets.”
Are we prepared to declare in this case that access to the claimants’ properties has not been impaired? Can the court say to these claimants “ one opening to your properties is sufficient for your purposes, therefore no legal injury has been done to you by closing the other?” Could we say that, if their properties fronted on two parallel streets, or were on the corner of two streets, one of which was vacated? Is it not more in accord with sound principle to say that their right of access was not limited by the frontage of their properties, but extended to the two intersecting streets, and that it is for the jury to say whether, under all the circumstances, the claimants have suffered substantial damages in consequence of the closing of one mode of access ?
A learned text writer,'after reviewing the authorities, says : “ It has been held that the vacation and closing of one street afforded no ground of complaint when access remained by other streets, but we should doubt this proposition as universally applicable: ” Lewis on Eminent Domain, § 184.
Another writer says: “But the more liberal opinion is that the fact that access may be had from another direction, is not conclusive evidence that there is no legal injury to property: ” Randolph on Eminent Domain, § 411.
He cites Gargan v. Louisville R. R. Co., 89 Ky. 211, as deciding that “if a convenient way be cut off, leaving only a decidedly inconvenient one, the abutting owner may have compensation.”
If we leave out of consideration the cases which are based wholly on a construction of constitutional provisions, like ours, and cases where the statutes under consideration were held not to contemplate the recovery of consequential damages, it will be found that the cases in which it has been held that the rigid *93rule, as stated by the appellant, applies, where the street was converted into a cul de sac, are very few, although I do not say that there is none.
In Chicago v. Union Building Ass’n, 102 Ill. 380, the part of the street to be vacated was three and one half blocks, one third of a mile distant, and the only injurious consequences were that persons passing from the claimant’s property down the street, would have, on arriving at the obstruction, to go a little further and make a slight detour—precisely the-same injury that would be sustained by every person having to pass by that route.
In St. Louis v. Flynn, 119 Ill. 200, the question decided was, as stated by the court, “ Can the defendant, as matter of law, be held liable to the plaintiff for damages resulting from the vacation of streets and alleys between Front and Fourth streets—the vacation being in another block in the city than that in which plaintiff’s property is situated ? ”
So, in Michigan, it was held that a petitioner had no interest, and was not entitled to notice of proceeding, because he could not reach the discontinued way without crossing a public street (Kimball v. Commissioners, 74 Mich. 699); but, where the discontinuance of a highway leaves the way to a landowner’s house a cul de sac, he is directly interested in the proceedings, and is entitled to notice: Goss v. Commissioners, 63 Mich. 608.
In Whitsett v. Union Depot, 10 Col. 243, none of the lots of the plaintiff abutted on those portions of the streets or alleys vacated, but all were on other blocks; hence the court properly held that “ the access to and egress from his lot is not affected by the vacating ordinances passed by the city.”
The same was the case in Glasgow v. City of St. Louis, 17 S. W. Rep. 743, and the court held that the case was not within the constitutional provision, because there was no physical interference with the plaintiff’s property, and no right of easement connected therewith, or entrance thereto, was affected.
In. the other Missouri case cited by the appellant (Bailey v. Carver, 12 Mo. App. 175), the point decided was that “the substitution of a deflected alley for a straight one does no more than change the direction of their exterior communication, and this being at a point beyond the confines of their property is as harmless to their absolute rights as if it were in any other part of the city.”
*94The case was precisely the same in principle as those in which the street vacated was in another block, and was put upon the same ground, namely, that, being compelled to travel further to reach other points, it was an inconvenience which the claimants would suffer in common with the general public.
Neither of the Minnesota cases cited (Shaubut v. Railroad Co., 21 Minn. 502, and Brakkin v. Railroad, 29 Minn. 41) is parallel to the present one. The first is not, because the obstruction was in another block; and the second is not, because access was wholly cut off. Both are in point, however, because they recognize the general principle, that the right of access gives an abutting landowner a special interest in the street, even beyond the limits of the frontage of his property.
The case of Coster v. Mayor, 43 N. Y. 399, is sometimes cited in support of the proposition that the vacation and closing of one street affords no ground of complaint where access remains by other streets, but a careful reading of that case, I think, shows that it was decided upon a construction of the statute which confessedly cannot be given to our statute, namely, that it did not give the right to consequential damages.
It is sometimes said that the right of an abutting landowner in an open street is coextensive only with the necessities of the case; but this doctrine cannot be sustained upon any sound principle, nor by the weight of authority where a statute, as broad as ours, is in force.
In Buccleuch v. Metropolitan Board, etc., 5 H. L. 418, cited in Randolph on Eminent Domain, § 411, the right of access to the river Thames was held to appertain to every foot of the adjacent land of the plaintiff, though access had been habitually gained at a single point only. The same principle was held to apply where the tract in question abutted on more than one street. The deprivation of access to one street is an injury, although another street affords egress: Ft. Scott Ry. Co. v. Fox, 42 Kansas, 490.
I have made this review of the cases, most of which were cited by the learned counsel for the appellant, not to show that they expressly decide that a recovery can be had in such a case as this, but to show that it is not decided by the great weight of authority that there cannot be a recovery.
Coming back to a consideration of the case upon general *95principles, and assuming that a property owner can recover such damages only as are special to him, and that this includes only damages consequent upon a deprivation or impairment of access to his property, I would hold that the facts set forth in this report, whether taken singly or together, do not raise a presumption of law or of fact that the claimants have not suffered such damage, and the report being in due form is sufficient to sustain the assessment.
Is the omission of the viewers to report specifically that the appellant is an owner of land, benefited by the vacation,' a fatal defect ?
In the Centre street case, 115 Pa. 247, it was decided that the assessment of special benefits, for the purpose of raising a fund to pay those who have been damaged by the vacation of streets, is a species of taxation, and within the power of the legislature. It was also held that, under the act of 1858 now under consideration, the assessment might be made against the owner of the land benefited personally. Chief Justice Sterrett said: “ While it is perhaps true that such assessments are generally against the property benefited, and not against the owner thereof personally, the fact that the legislature has authorized them to be made against the owner, as in this case, cannot affect the constitutionality of the law. The object in either case is to provide a mode of collecting the assessment, and that is wholly within the discretion of the legislature: Desty on Taxation, 286.”
It is, nevertheless, true that the assessment can only be made against the owner of the land, and that the assessment cannot exceed the benefit to the land. Both of these facts should appear expressly or by necessary implication in the report; but it seems that an omission to describe the land is not a fatal defect: Center street, supra. But the ordinance annexed to, and made part of, the petition, and referred to in the report, contains this clause: “Provided that the Philadelphia and Reading Terminal Railroad Company shall pay all expenses and damages arising from the said revision, and that it shall enter into a contract with the city of Philadelphia, in a form to be approved by the city solicitor, covenanting to pay all such expenses and damages, and to indemnify the city of Philadelphia from any liability for, or on account of, the said revision.”
*96It may be fairly inferred that the contract was entered into, in compliance with the condition, for the report states that the revision of the city plans contemplated by the ordinance was made and duly confirmed by the board of surveyors, and that the appellant, in the construction of its necessary works, had entered upon and occupied those portions of Ninth and Melon streets stricken from the city plan as aforesaid.
The report further sets forth “ the vacation of Melon street on account of the closing of Ninth street, for the benefit of the Philadelphia and Reading Terminal Railroad Company, was part of a general scheme or plan for the revision of plans of the city streets in the vicinity of Philadelphia and Reading Terminal Railroad Company, made necessary by the building of its elevated railroad to its new terminal station at Twelfth and Market Streets, in the city of Philadelphia.”
Under these circumstances, may not a fair presumption of such ownership of land as would make the appellant liable to assessment, arise from the occupancy of it, by works of the permanent character referred to in the petition and report? ' It is said that no such presumption can arise, because the report shows that all the land abutting on that part of Melon Street, stricken from the city plan, belongs to the Philadelphia and Reading Railroad Company; but it by no means follows that this is the only land which would subject the owner to assessment, nor am I convinced that the ownership contemplated by the statute must be in fee simple.
It appears, with sufficient certainty, that the appellant is in the actual occupancy of land which might subject the owner to assessment for benefits thereto, with works of a permanent nature ; namely, an elevated road connecting with its terminal station at Twelfth and Market streets; that the ordinances were passed for the benefit of the appellant, and upon condition that it would pay the expenses and damages caused by the vacation of the streets; that it has actually received, and is in the enjoyment of, the benefits which were intended, and it may be fairly inferred that it has complied with the condition, by entering into the contract required by the ordinance.
These facts, taken together, take the place of a formal and specific averment of the ownership of land. But, say the counsel for the appellant, the roadbed of a railroad company cannot *97be assessed with benefits for such an improvement, and cite the sidewalk and paving eases in support of the proposition. But, as has been seen, this is not an assessment against the roadbed, but against the owner. The cases referred to were decided principally upon the ground that the improvements then under consideration could not, from their very nature, be a special benefit to the roadway of a railroad company, but the vacation of a street may be, and manifestly was, in this case, a benefit; and, when we come to the question of ownership, it makes very little difference whether the appellant owns the roadbed in fee, or has only the right of way: Junction R. R. Co. v. Philadelphia, 88 Pa. 424.
I would, therefore, hold that the omission referred to in the assignment of error under consideration was not, under the circumstances, fatal to the report. In. order to prevent misunderstanding, however, it should be stated that this is not put upon the ground that the contract referred to in the ordinance, even if entered into by the appellant, would entitle the claimants to recover damages, if their property is so situated that it has not, or could not, receive legal injury in consequence of the vacation of the streets in question. The fact is referred to simply in connection with the facts as to the occupancy of the land, as bearing upon the question raised by the assignment of error under consideration.
For these reasons, in connection with the reasons assigned by the majority of the court upon the other two questions raised in the case, I would affirm the judgment of the court below.
Beaveb, Judge, concurs in the foregoing dissenting opinion.