Johanna Kelly

Johanna Kelly
b: ABT 1830
d: 03 APR 1904
Biography
Johanna O'Brien, Executrix, vs. Pennsylvania Schuylkill ValleyRailroad Company. The provisions of Article XVI, Section 8, of theConstitution, securing a right to recover damages for consequentialinjuries to property by the construction of a railroad, make theinjury complete as soon as the work is actually undertaken at thQpoint where such injuiy is done, according to the plans and purposesof the company as defined by their location, grade, and generalscheme of construction. If the damages are neither paid nor securedin advance, an action to recover the amount thereof may be maintainedim- mediately after the work is undertaken ; and in such action theplaintiff may recover all damages which may be caused by the locationand by the subsequent construction of the road. A railroad companyhaving located its line through a contemplated excavation in a certain borough began work in accordance with the plans. The road causedconsequential in- jury to neighboring real estate ; the owner thereofwas alive when the work was begun. Said owner afterwards died beforethe work was completed. An action being brought by his executrixsubsequent to the completion of the work to recover damages for theinjury to the real estate : Held, that the right of action accruedduring testator's Ufe- time as soon as the work was begun, and thattherefore the action could be maintained by his executrix. Error tothe Common Pleas of Montgomery county. The facts of the case fullyappear from the opinion of the Su- preme Court. Charles Hunsickerand Henry M. Tracy , Esqs, ^ for plaintiff in error. Charles H.Stinson, Esq., for defendant in error. The opinion of the SupremeCourt was delivered March 12, 1888, by Mr. Justice Clark. Thisaction on the case was brought by Johanna O'Brien, execu- trix of thelast will and testament of Jeremiah O'Brien, deceased, to re- coverdamages for an alleged consequential injury to certain real pro-perty of said Jeremiah O'Brien, in Conshohocken, arising out of thelocation and construction of the Pennsylvania Schuylkill Valleyrailroad. The railroad, which was located upon the company's ownground, runs through Conshohocken in a northwesterly direction,parallel with but north of Marble street, crossing at right angles Ma- ple, Oak, Forrest and Fayette streets. O'Brien's property consistedof a lot on the corner of Marble and Forrest, and other lots adjoin-ing on the south ; also another lot on Oak street, some distance south of Marble. Thus, it will be observed, the railroad was north andO'Brien's properties were all south of Marble street. The grade ofthe railroad required an excavation of some thirteen or fourteen feetto be made at the several street crossings. When the work wascommenced a temporary bridge was thrown over Oak street until theentire excavation was complete, when a permanent bridge was builtover Forrest; then the temporary structure over Oak was removed, thestreet fenced across, and it so remained. The bridge over Forrest iselevated several feet above the grade line of the street, and theapproach is so steep and difficult as to greatly impede and obstructtravel over it. The plaintiff in her declaration complains insubstance that, by reason of the premises, the streets and highwaysmentioned are obstructed, reasonable access to the plaintiff'sproperty prevented, the property rendered inconvenient for use as ahabitation, and the value thereof greatly depreciated; and althoughno part of his property has been taken, yet she alleges that, inconsequence of the construction of the road, it has been in- juredand in great measure destroyed. Jeremiah O'Brien died on the 17th ofNovember, 1883, and it seems to be conceded that the railroad hadbeen located and the excavation of these streets commenced beforethat date ; but the work was not completed until about the ist ofApril, 1884. The court instructed the jury if they should find thatthe excavation was made and the bridge built after the death ofO'Brien, the plaintiff could not maintain her suit as executrix. " Iinstruct you, " says the learned Judge, "that the person who was theowner of the property at the time the railroad company constructedits railway over Oak street and over Forrest street, is the party whois entitled to recover the damages ; and by that I mean the party whoowned the property at the completion of that part of the railway thatcaused the injury, whereof complaint is now made, 'i' * ♦ it will beimportant for you to determine, under this ruling of the court, whowas the owner of the property at the time the railroad was completedat Oak street and at Forrest street in such manner as to occasion thedamages for which the complaint is brought. * * * If you find thatthe ob- struction or excavation in Oak street, which caused injury tothese properties, was not completed on the 17th day of November,1883^ then the plaintiff can not recover any damages for theobstruction of Oak street in this case." This instruction of thecourt is the only error assigned. No other question affecting theplaintiff's right to recover is raised on this record. The right ofaction is based on the eighth section of the sixteenth article of thenew Constitution, which provides that "Municipal and othercorporations, and individuals invested with the privilege of takingprivate property for public use, shall make just compensation forproperty taken, injured or destroyed by the construction orenlargement of their works, highways or improve- ments, whichcompensation shall be paid or secured before such tak- ing, injury ordestruction^ The provision for an actual taking, it will be observed,is precisely the same as for a consequential injury to property ; thesection applies equally and alike in both cases. If O'Brien'sproperty has been injured within the meaning of this sec- tion of theConstitution, it is plain that the compensation was pay- able beforethe injury was done, and the right of action certainly accrued at thetime the compensation was to be made. The provi- sions of theConstitution are, in this respect, analogous to those of the generalrailroad law of February 19, 1849, which provides "that before suchcompany shall enter upon or take possession of any such lands ormaterial, they shall make ample compensation to the owner Or ownersthereof, or tender adequate security therefor.'* It has beenrepeatedly held, construing this act of 1849, ^^^ when the railroadhas been located the land has been taken and ap- propriated forpublic use; that the right of the land owner to sue for his damagesis complete, and he may recover all which may be caused by thelocation and by the subsequent construction; that he can have but oneaction, and that the damages can not be severed : Wadhams vs.Lackawanna, &c., R. R. Co., 42 Penna., 310; Beale vs. Penna. R. R.Co., 86 Id., 509. The constitutional provision must, we think,receive a similar construction. If the damages must be paid orsecured before the injury, it follows that as soon as the work isactually undertaken at the point where the injury is done, accord-ing to the plans and purposes of the company as defined by theirlocation, grade, and general scheme of construction, the injury iscomplete ; and, if the damages are neither paid nor secured, an ac-tion may be maintained for the damages consequent upon the com-pletion of the road in accordance therewith. The action is not foran ordinary trespass ; no actual trespass Was committed. The injury,if any, is purely consequential. It is an injury arising from theproposed construction and completion of the road, which has beenalready undertaken; it is a single injury entire and indivisible, andthe damages can not be severed. There can, therefore, be but oneaction; and that action, as we have said. may be brought as soon asthe work which results in the injury complained of is undertaken.It is not in conformity with either the letter or the spirit of theConstitution to hold that the right of action shall be postponed un-til the injury is complete, for the provision is plain that "the com-pensation shall be paid or secured before the taking, injury or de-struction." Moreover, if the right of action be thus postponed, itwould be in the power of the company, by a tardy performance, todelay the action indefinitely. The action is for consequentialdamages on the principles of the common law, but the right of actionin advance of the injury is con- ferred by the provisions of theConstitution ; and in this respect the present case differs from theSchuylkill Navigation Co. vs. Thoburn, 7 S. & R., 410. The case ofBuckwalter vs. Black Rock Bridge Co., 38 Penna., 281, is more inaccord with the facts and principles of this case. In that case thecharter of the bridge company provided, in a certain contingency, forthe payment of consequential damages to the owner of a ferry over thestream upon which the bridge was to be built. It provided for theassessment of all damages which the owner of the ferry " shallsustain by reason of the erection of the said bridge"; which damages,it was provided, should "be paid by the said company before theerection of the said bridge." The dam- ages were assessed before thework began, but were estimated ac- cording to the injury which theferryman jvould sustain when the work was complete. WhetherJeremiah O'Brien by the construction of this railroad suffered anyinjury peculiar to himself, and different in kind and de- gree fromthat which is sustained by the general public, is a ques- tion notraised by the assignments of error. That question, there- fore, isnot before us. All that we do decide is, that if the injury is suchas was contemplated by the Constitution, the right of action accruedwhen this particular part of the work was actually under- taken.The judgment is therefore reversed, and a venire facias de novoawarded.
Facts
  • ABT 1830 - Birth - ; , Ireland
  • 03 APR 1904 - Death - 25 Oak St. ; Conshohocken, Montgomery, Pennsylvania, USA
  • 1900 - Residence - ; Conshohocken, Montgomery, Pennsylvania, USA
  • 1900 - Residence - ; Conshohocken, Montgomery, Pennsylvania, USA
Ancestors
   
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Johanna Kelly
ABT 1830 - 03 APR 1904
  
 
  
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Family Group Sheet - Child
PARENT (M) Kelly
Birth
Death
Marriageto ?
Father?
Mother?
PARENT (U) ?
Birth
Death
Father?
Mother?
CHILDREN
FJohanna Kelly
BirthABT 1830, Ireland
Death03 APR 1904Conshohocken, Montgomery, Pennsylvania, USA
Marriage01 NOV 1853to Jeremiah O'Brien at Conshohocken, Montgomery, Pennsylvania, USA
Marriage08 DEC 1850to John Wall at Norristown, Montgomery, Pennylvania, USA
MPhillip Kelly
Birth
Death, Pennsylvania, USA
Family Group Sheet - Spouse
PARENT (M) Jeremiah O'Brien
BirthABT 1822, Cork, Ireland
Death17 NOV 1883 Conshohocken, Montgomery, Pennsylvania, USA
Marriage01 NOV 1853to Johanna Kelly at Conshohocken, Montgomery, Pennsylvania, USA
Marriageto Catherine Moore
FatherEdward O'Brien
MotherJohanna Herrin? Herris? Harris?
PARENT (F) Johanna Kelly
BirthABT 1830, Ireland
Death03 APR 1904 Conshohocken, Montgomery, Pennsylvania, USA
Marriage01 NOV 1853to Jeremiah O'Brien at Conshohocken, Montgomery, Pennsylvania, USA
Marriage08 DEC 1850to John Wall at Norristown, Montgomery, Pennylvania, USA
FatherKelly
Mother?
CHILDREN
FMargaret O'Brien
Birth01 AUG 1866Conshohocken, Montgomery, Pennsylvania, USA
Death21 APR 1907Philadelphia, Philadelphia, Pennsilvania, USA
MThomas O'Brien
BirthABT 1862
Death
MMichael J. O'Brien
Birth23 JUL 1855Conshohocken, Montgomery, Pennsylvania, USA
Death18 JUN 1939Philadelphia, Philadelphia, Pennsilvania, USA
MarriageABT 1881to Rebecca
MJeremiah O'Brien
BirthOCT 1877Conshohocken, Montgomery, Pennsylvania, USA
Death
MJohn R. O'Brien
BirthABT 1858
Death18 JUL 1902Conshohocken, Montgomery, Pennsylvania, USA
FJoanna O'Brien
BirthABT 1860
Death
Marriage1882to Owen J. Rudden
FMary O'Brien
Birth17 FEB 1866
Death29 OCT 1938Philadelphia, Philadelphia, Pennsilvania, USA
FJulia M. O'Brien
BirthMAY 1874Conshohocken, Montgomery, Pennsylvania, USA
Death07 MAR 1934Philadelphia, Philadelphia, Pennsilvania, USA
FCatherine T. O'Brien
Birth18 JUL 1869Conshohocken, Montgomery, Pennsylvania, USA
Death23 OCT 1929Philadelphia, Philadelphia, Pennsilvania, USA
Family Group Sheet - Spouse
PARENT (M) John Wall
Birth
DeathBEF 1853
Marriage08 DEC 1850to Johanna Kelly at Norristown, Montgomery, Pennylvania, USA
Father?
Mother?
PARENT (F) Johanna Kelly
BirthABT 1830, Ireland
Death03 APR 1904 Conshohocken, Montgomery, Pennsylvania, USA
Marriage01 NOV 1853to Jeremiah O'Brien at Conshohocken, Montgomery, Pennsylvania, USA
Marriage08 DEC 1850to John Wall at Norristown, Montgomery, Pennylvania, USA
FatherKelly
Mother?
CHILDREN
MJames J. Wall
Birth1851
Death11 MAR 1918Philadelphia, Philadelphia, Pennsilvania, USA
Marriage1890to Margaret C. Devlin at Philadelphia, Philadelphia, Pennsilvania, USA
Descendancy Chart
Johanna Kelly b: ABT 1830 d: 03 APR 1904
Jeremiah O'Brien b: ABT 1822 d: 17 NOV 1883
Margaret O'Brien b: 01 AUG 1866 d: 21 APR 1907
Thomas O'Brien b: ABT 1862
Michael J. O'Brien b: 23 JUL 1855 d: 18 JUN 1939
Rebecca b: ABT 1863
Mary E. O'Brien b: NOV 1895
Frank M. O'Brien b: ABT 1904
Thomas J. O'Brien b: OCT 1881
Margaret E. O'Brien b: FEB 1883
Anna T. O'Brien b: JAN 1893
Jeremiah O'Brien b: OCT 1877
John R. O'Brien b: ABT 1858 d: 18 JUL 1902
Joanna O'Brien b: ABT 1860
Owen J. Rudden b: 31 OCT 1861 d: 08 OCT 1941
Katherine Rudden b: JUL 1897
Madaline Rudden b: JAN 1898
Elise M. Rudden b: DEC 1892
Frank Rice b: ABT 1894
Morris Rudden b: AUG 1890
John Rudden b: 1883 d: 19 NOV 1883
Ceclia Rudden b: MAR 1888
Mary O'Brien b: 17 FEB 1866 d: 29 OCT 1938
Julia M. O'Brien b: MAY 1874 d: 07 MAR 1934
Catherine T. O'Brien b: 18 JUL 1869 d: 23 OCT 1929
John Wall d: BEF 1853
James J. Wall b: 1851 d: 11 MAR 1918
John Wall b: ABT 1880
Josephine Wall b: ABT 1885