Johanna Kelly

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.