The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-07-12

consequence of its public works; wer
| vs. Plymouth Borough. 1is Pa. 566; fIl-
liott w. Oil CITY, 1923 Pa. $50; Torrey VS..
| Scranton, 1913 Pa. la. The plaintiff seeks
to recover OH this ground. The source of
| the injury complained of is thus stated in
| the paper-book of the appellee I'm
| 1896 Linden street was graded. The IA
| vine down which the water had thereto
| fore flowed was damned up. The grade
of the north end Of Eighth street was
changed from q down grade of 11a per
cent. from south to north to grade Of
l per cent. from north to south for 24U
| feet. The result was, according to the
testimony, that large volume OF water
was cast from Linden street upon the
| north end of Eighth street, which, to-
gether with the water accommodating for
?40 feet on the north end Of Eighth street,
was all accumulating in front OF Coop
| er's property and cast into and upon the
same"
A CORRECT STATEMENT.
This Is correct statement of the po-
sition taken by the learned counsel for
the appellee here as we'll as in the court
below. This leaves no doubt that plain
tins cause of action has it's foundation
in the change Of the grade of Eighth
street Under article 49, section ., of the
constitution of 1874, municipal and other
corporations and individuals invested
with the privilege OF taking private prop
erty for public use shall make just COM
pensation for property taken, injured CT
destroyed by the construction or enlarge
ment of their works. highways or i'm
provements." The injury meant to he
provided for was such as was unavoid-
able IN the accomplishment Of the public
undertaking. but the property protected
is not limited to that directly abutting
upon the Improvement. but includes all
SUFFICIENTLY near to make the injury
proximate, immediate and substantial;
Mellor VS.. Philadelphia, 160 Pa 61I; in re
Mellon street. iS2 Pa. 397. 1t has been
held that an interference with the drain
age of property is an injury within the
maening Of the constitution; Chathams
street. Philadelphia's Appeal, 19l Pa. Goa.
The property of the plaintiff abutted di-
rectly upon that part of Eighth street,
the grade Of which was changed, and the
accumulation OF water in front of the
property as natural and unavoidable
consequence Of the change. If the prop
erty was injured by the change it came
within the protection of the constitutional
provision. The changes of grade having
been made in the manner provided by
law In ordaning the Improvement. The
grade as established must stand until
changed by the city authorities. all that
the plaintiff can demand is compensa-
tion.
EFFECT WAS DIRECT.
The effect of the change of the grade
of the street upon the drainage was di-
rect immediate and unavoidable: water
must flow down hill. This was there
fore an element to be considered in de-
terminns the effect upon the value of
the plaintiffs property resulting from
the change of the grade of the street.
The constitution gave the plaintiff right
to compensation, the remedy has been
regulated by statutes. The city of Scran-
ton was at the time in question a city of
third class, and the damages and the
benefits arising from the change of the
grade of Eighth street might have been
ascertained under the provisions of the
act of May %, 1889, p. l.. 277, or the plain
tiff might have avaied himself of the
more satisfactory remedy provided by
the act of May 16, 1891, P. L. rs. A statu-
tory remedy having been provided for
by the enforcement of the constitutional
right, that remedy ought to have been
pursued. The ascertainment Of the dam
ages and benefits arising from the exc
cution of public work by municipal
ity. is matter in which the public has,
and many private individuals may have,
an interest
1t is important that those who are to
receive compensation for injuries and
those who are to pay for benefits accru-
ing to property as whole must be taken
into consideration. in connection with
any injury that may result to land and
buildings.
If each individual owner of land upon
newly graded street We're permitted to
settle his rights in an action of trespass,
the result would lead to confusion and be
prejudicial to the rights of the public.
When the injury to property is such only
as is direct, immediate ana necessary or
unavoidable consequence of the act of
eminent domain itself, irrespective of
care or negligence in the manner of exe>
cuton of the work. a proceeding before
viewers is the appropriate remedy; Den
niston VS.. Philadelphia. 16I Pa. Al; Storll
VS.. Philadelphia, 195 Pa. 1Ol. We are of
the opinion that the plaintiff was not en-
titled to recover in an action of trespass,
and that the point of the defendant re-
questing binding instruction ought to
have been affirmed.
The Judgment is reversed.