Ogden v. City of Philadelphia

22 A. 694, 143 Pa. 430, 1891 Pa. LEXIS 934

• Court: Supreme Court of Pennsylvania
• Decided: October 5, 1891
• Docket: Nos. 246, 247
• Status: Published

Opinion

Opinion,

Mr. Justice Mitchell:

In the absence of any opinion by the court below, we are left to gather the grounds of the nonsuit from the facts and the arguments of counsel.

The facts, which do not appear to be disputed, are that the first grade for North street was established on the city plan in 1871, but nothing was done on the ground until 1887. For the establishment of the grade of 1871 there was no right of action: O’Connor v. Pittsburgh, 18 Pa. 187; Philadelphia v. Wright, 100 Pa. 235. Therefore, the statute of limitations could not begin to run from that date. But the constitution of 1874, article XVI., § 8, gave a right to the owners to have compensation for property injured, as well as for property taken by municipal and other corporations in the construction or enlargement of their works. The right of action which this section gives is clearly for the actual establishment of the grade on the land. The general rule is that the cause of action arises when the injury is complete, and this has been uniformly applied to the taking of property for public use, from the case of Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411, down to the present day: Volkmar St., 124 Pa. 320; Whitaker v. Phœnixville Bor., 141 Pa. 327; Brower v. Philadelphia, 142 Pa. 350. The cases which were governed by a different rule were exceptions, such as those arising under § 27 of the consolidatiou act of February 2, 1854, which in express terms gave damages for a change of grade regulations: Plan 166, opinion filed herewith, ante 414. There is nothing in the constitutional provision which indicates an intent to depart from the general rule under which, in the present case, the cause of action could not arise until the actual cutting down of the ground in 1887.

No point is made that the action should have been brought originally in the Common Pleas. The city, instead of raising the question of jurisdiction in the Quarter Sessions, appealed to the Common Pleas, and there filed of record an agreement that the appeal should be considered at issue and tried without pleadings, and the agreement here waives any question of jurisdiction of the court in which damages were sought to be recovered. The parties, therefore, being in the proper court on a proceeding de novo, this court will not be astute to inquire how they got there: Wilson v. Scranton City, 141 Pa. 621. And the point is noticed merely to avoid any apparent conflict betwmen this and the other cases in which it is hel(l that the Quarter Sessions has no jurisdiction.

Judgment reversed, and procedendo awarded.