Philadelphia & Reading Terminal Railroad Co.'s Appeal

1 Pa. Super. 63, 1895 Pa. Super. LEXIS 12

Opinions

Opinion by

Willard, J.,

The first, tenth and twelfth assignments of error raise the question squarely, whether the proceedings in the court below were properly instituted under the provisions of the 6th section of the act of April 21, 1858.

The contention of the appellant is that the court of quarter sessions of the county of Philadelphia was without jurisdiction in the premises, and this involves the question whether the act of April 21, 1858, has been repealed or not. The appellant claims that by the provisions of the act of May 8, 1889, and of May 16, 1891, the act of April 21, 1858, was repealed. This leads us to a consideration, first, of the act of May 16, 1891. At the time this act was passed, extensive municipal improvements had been commenced and were in process of' construction in the city of Pittsburg, under the provisions of the act of J une 14, 1887. By a decision of the Supreme Court, that ac t was declared unconstitutional (Engel’s App., 27 W. N. C., 186), and the city of Pittsburg was powerless to collect assessments, for work completed, or to prosecute other contemplated municipal improvements. On May 16,1891, three acts of assembly were approved, one of them entitled “ An act to authorize the ascertainment, levy, assessment and collection of the costs and damages and. expenses of municipal improvements* including grading, paving, macadamizing, or otherwise improving of any street, lane or alley, or part thereof, completed or in. process of completion; and also, the costs, damages and expenses of the-construction of any sewer completed or now in process of comr. pletion, and authorizing the completion of any such improvement.” P. L. 1891, p. 71. The second act is entitled “ An act in relation to the laying out, opening, widening, straightening* extending or vacating streets and alleys, and. the' construction. . of bridges in the several municipalities of this- commonwealth.;, the grading, paving, macadamizing, or otherwise improving streets and alleys, providing for ascertaining the damages to private property resulting therefrom, the assessment of the damages, costs and expenses thereof upon the property benefited ; and the construction of sewers and payment of the damages, costs and expenses thereof, including damages to private property resulting therefrom.” P. L. 1891, p. 75. The third of these acts, P. L. 1891, p. 80, is an act repealing fifteen special or local acts relative to streets, alleys, bridges, sewers, etc., in the city of Pittsburg.

The second of these acts, as its title indicates, provided a code for every municipality in the commonwealth, relative to opening, widening, straightening, extending or vacating streets and alleys. It provides for the presentation of petitions by the proper parties, to the courts of common pleas of the proper county, and for the appointment of three freeholders as viewers. By the 9th section of said act, it is provided that municipal corporations shall have power to open, widen, straighten or extend streets or alleys, and to vacate the same upon petition of a majority in number and interest of owners of property abutting on the line of the proposed improvement. In connec tion with the other two acts above cited, approved at the same time, it is evident that these acts were passed for the relief of the city of Pittsburg, in view of the unconstitutional legislation under which municipal improvements had been made and which, .at the time of the passage of these acts were stayed for want of appropriate and adequate legislative authority. The act of May 16, 1891, P. L. 71, was passed to remedy and provide for the mischief done under the provisions of the act of June 14, 1887, declared unconstitutional. The act of May 16, 1891, P. L. 80, repeals certain acts and parts of acts concerning streets and sewers in the city, of Pittsburg. These acts and parts of .acts, as above stated, were fifteen in number and were applicable to the city of Pittsburg. It was thus clearly indicated by the legislature that no special or local act was intended to be repealed by the act of May 16, 1891, P. L., 75, except the acts and parts of acts mentioned in the repealing act above cited. Said act contains no repealing clause. The act approved May 8, 1889, P. L., 129, entitled “ An act fixing the number of road and bridge viewers,” whether intended to apply to country or city, contains this express exception, “ This act shall not apply to counties having local acts inconsistent herewith.”

If the act of April 21,1858, is a special or local act, then the act of May 16, 1891, above cited, did not repeal its provisions, as a general statute without negative words will not repeal a previous local statute, even though the provisions of both are inconsistent with each other.

The question then, of jurisdiction hinges upon whether the act of April 21, 1858, is a special or local act. That act is entitled “ A further supplement to the act incorporating the city of Philadelphia.” The 6th section of the act pertains to the question we are considering, and is here inserted. “ Section 6. That it shall be the duty of juries selected to assess damages for the opening, widening or vacating roads or streets within the said city to ascertain and report to the court: First, what damages the parties claiming the same are entitled to; and second, to assess and apportion the same among and against such owners of land as shall be benefited by such opening, widening or vacating any such road or street; and when such report shall be affirmed by the court, upon notice to all such parties and- the damages paid or secured by the parties among and against whom it shall be so assessed and apportioned, the chief commissioner of highways shall proceed to open, widen or vacate such road or street accordingly: Provided, however, that it shall be lawful for councils when in their judgment the public interests shall require it, to provide for the payment of such damages out of the city treasury; and further provided, that two-thirds of the members of each branch of councils present, at the passage of such ordinance, consent thereto, and the yeas and nays on the passage thereof, shall be entered on the journals.” That this section applies only to the city of Philadelphia, is too plain for argument. The act of April 1, 1864, P. L. 206, entitled “ An act relating to the opening of streets and payment of damages therefor in the city of Philadelphia,” while it "provides a new method of assessing damages for the opening of streets, in no way modifies or repéals that part of the act of April 21, 1858, as to vacation. As to the mode of appointing viewers under the act of June 13, 1836, P. L. 566, the 76th, 77th, 78th, 79th, 80th and 81st sections of said act, provide a peculiar method of selecting viewers in the city of Philadelphia. By the provisions of the act of March 16, 1866, P. L., 224, the above-quoted sections were expressly repealed, together with the proviso to the first section of said act, and in lieu thereof, it was enacted as follows: “ And hereafter, in all cases relating to the opening of streets upon the plans of the city of Philadelphia, and of view, review and assessment of damages, for and in relation to roads, bridges or property, otherwise taken for public use, the persons appointed to view, review and assess damages shall be appointed by the court of quarter sessions of the county of Philadelphia, in the same manner, with the same qualifications, and to have the like powers, and perform the like duties, as is provided by the general laws of this commonwealth.” The 6th section of the act of April 21, 1858, in connection with the act of March 16, 1866, provided a system for the vacation of streets, peculiar to the city of Philadelphia; a system perfect in its operation, local in its application, and as such has been resorted to from the date of its passage in all proceedings for the vacation- of streets in the city for which it was intended. That the 6th section of the. act of 1858 was in full force and operation before the passage of the acts of 1889 and 1891 -above referred to, was fully settled by Mr. Justice Mitchell, in In re Howard Street, 142 Pa. 601. As it is perfectly clear that the act of 1858 is a local and special act, so far as it provides for the assessment of damages and benefits in the vacation of streets and proceedings for that purpose, the act is not repealed and the court of quarter sessions of Philadelphia had full jurisdiction of the proceedings in that court. Therefore it follows that the 1st, 10th and 12th assignments of error must be overruled.

The 2d, 3d, 4th, 9th and 11th assignments of error, raise the principal question in this case. The appellant’s case is founded upon exceptions to the report of the jury of view. The first exception filed in the court below is as follows:

1. “ Because it appears by the said report that none of the claimants to whom damages are awarded by the said report is the owner of property abutting upon the portion of Melon street vacated.”

This exception goes to the very root of the controversy. The -first duty imposed upon the jury of view by the act of assembly under the provisions of which they were acting, was, “To ascertain and report to the court, first, what damages the parties claiming the same are entitled to.”

Our first duty in considering this question is to inquire whether the parties claiming are entitled to any damage. On a careful examination of the record, we find, that Melon street from the west side of Ninth street to Ridge avenue, had been for many years (prior to its partial vacation) a public highway and street. That the councils of Philadelphia, by ordinance duly approved on July 14, 1891, revised that portion of the city plan of streets comprised between Ninth, Tenth and Wallace streets and Fairmount avenue, in the Thirteenth ward of the city of Philadelphia, by striking therefrom, that portion of Melon street lying between the west line of Ninth street and a point one hundred and thirty-two (182) feet one and one half (lg) inches west thereof, on the south side of Melon street, and a point one hundred and twenty-two (122) feet, six and three quarters (6-|) inches west of Ninth street on the north side of Melon street. It further appears that the properties of all the parties to whom damages were awarded, did not abut on the part of Melon street vacated, but commenced at the point of vacation, extending westward toward Tenth street, from No. 912 to 924 on the south side of Melon street, and from 913 to 925 on the north side of said street. Numbers 912 and 913 being nearest to the vacated portion, and Nos. 924 and 925 most distant therefrom. It further appears, from the viewers’ report, that before the vacation complained of, Melon street was an open, public highway from Ridge avenue to the west side of Ninth street between Fairmount avenue and Green street, in the city of Philadelphia. It further appears, from the revised plan referred to in the petition and report of viewers thereon, that the properties Nos. 912 and 913, measuring from the center of each property, are one hundred and forty-one (141) feet from Ninth street, and two hundred and fifty (250) feet from Tenth street; that the properties Nos. 924 and 925, from the centers thereof, are two hundred and forty (240) feet from Ninth street, and one hundred and fifty-one (151) feet from Tenth street; that the properties Nos. 918 and 919, measuring from the centers thereof, are one hundred and ninety-two (192) feet from Ninth street, and one hundred and ninety-nine (199) feet from Tenth street. It' further appears, from said revised plan, that Melon street is about forty-nine feet in width, including sidewalks, and from curb to curb it is about twenty-five feet in width. It further appears in the language of the report of the jury of view, “ That the damage to the claimants’ properties upon Melon street, is caused by the closing up of Ninth street and Melon street in manner aforesaid, thus depriving them of an outlet eastward by way of Ninth street to the general system of streets in the city of Philadelphia. Their outlet to the westward is not in any way impaired.” From these facts, disclosed by the record, we have this proposition. Are the owners of thirteen lots abutting on the portion of Melon street not vacated, situated about equi-distant between Ninth and Tenth streets, entitled to damages by reason of the vacation of Ninth and Melon streets, thus depriving them of an outlet eastward to the general system of streets, while their outlet westward to and through Tenth street to the same general system of streets, is unimpaired?

. In discussing this proposition, in order to sustain the contention and claim of the appellee, it must clearly appear that these thirteen owners of properties on Melon street have sustained injury distinct from that of the public in general. It is for the court to instruct the jury as matter of law what constitutes special injury, and the jury to find the amount thereof. In this case, under these facts, can it be said as matter of law that the properties Nos. 924 and 925 have been specially injured, and Nos. 926 and 927 on the same street have not? No such rule can be established and no attempt to establish such a rule has ever been successfully made. Properties abutting on the vacated portion of a street are specially injured because access to such properties is essential to the enjoyment thereof, and is so coupled with the properties as to be a part thereof. So when the vacation of part of a street actually destroys or renders impracticable, access to properties on the same street, but not abutting on the vacated portion, there is a special injury on the same principle. By adhering to this rule, it is easy to declare what constitutes special injury. By departing from it, how can juries be instructed where special injury begins and ends ? The language of the act of 1858 is as broad as the provisions of the 8th section of Art. XVI. of the Constitution, and the decisions of our Supreme Court, in construing the constitutional provision, can be safely resorted to in deciding the question of injury in this case. In Penna. R. R. Co. v. Lippincott, 116 Pa., 472, where the erection of the company’s elevated tracks on the opposite side of the street did not in any way prevent free access to the plaintiff’s property, it was held that there was no such injury thereto as would entitle him to recover. In County of Chester v. Brower, 117 Pa. 647, where the county had erected a bridge over a creek in the borough of Phoenix-ville, and in the construction of abutments or approaches to the bridge, had built a wing-wall in front of the plaintiff’s house and only seven feet distant therefrom, thereby seriously interfering with his access thereto and his reasonable use and enjoyment of the same, it was held that the plaintiff was entitled to recover. In Penna. R. R. Co. v. Marchant, 119 Pa. 541, the facts were that the elevated railroad of the Pennsylvania Railroad Company was built on the south side of Filbert street, and in its construction, in no way prevented free access to the plaintiff’s property. Chief Justice Paxson distinguished the case from Railroad Co. v. Duncan, where access to the property was destroyed. In Gold v. City, 115 Pa. 184, where the city authorities left the street in front of plaintiff’s property in such bad condition as to be almost impassable, and all persons who could do so, avoided it, whereby plaintiff’s business as an innkeeper was greatly reduced, because of the fact that her ingress and egress from the property was not prevented, she was held not to have suffered such a special injury as to entitle her to maintain her action. The court said in affirming the court below, “ The learned referee ruled this case upon the familiar and well-settled principle that one who is injured by a public nuisance, either in his person or in his property, cannot have his remedy by action unless he can show a damage which is peculiar to himself, and different in kind and degree from, and beyond that which is sustained by the general public.” In Dooner v. Penna. R. R., 142 Pa. 86, among other facts agreed upon was the following : “ That the premises of the plaintiff consist of a lot of ground and a three-story brick messuage thereon erected, situate on the north side of Filbert street at a distance of thirty-four feet east of Nineteenth street, containing in front on Filbert street, sixteen feet, and extending in depth one hundred and seventeen feet to Cuthbert street. The said Filbert street is fifty-one feet wide and the entire width thereof intervenes between the plaintiff’s premises and the defendant’s road at the point where the elevated railroad passes in front of the plaintiff's premises.” It was held that the plaintiff could not recover, and that the case was governed by Railroad Co. v. Lippincott.

In Pennsylvania Schuylkill Valley R. R. Co. v. Walsh et al., 124 Pa. 544, and R. R. v. Ziemer, 124 Pa. 560, the plaintiffs were awarded damages on the ground that access to their properties was cut off, and in his opinion Chief Justice Paxson in the former case, says: “ The track was laid close to the curbstone on the side of the street near to the plaintiff’s property, by means of which the access thereto, if not actually cut off, was rendered dangerous.”

In McGee’s Appeal, 114 Pa. 470, the city of Pittsburg, under legislative authority, vacated a portion of Washington street and allowed the Pennsylvania Railroad Company to_ occupy the same. McGee owned property abutting on Washington street beyond the vacated portion, and applied for an injunction to restrain the city and railroad company from vacating the street. The injunction was dissolved on the ground that “ public streets and highways belong to the commonwealth, and when the government sees fit to vacate them, the consequential loss, if there be any, must be borne by those who suffer it.”

The cases from other states cited by appellants’ counsel, in their exhaustive and able argument, are strikingly in point.

Smith v. Boston, 7 Cushing, 254, was a petition for assessment of damages alleged to have been done to the plaintiff in his property by the discontinuance of a portion of Market street, in the city of Boston, by the order of the mayor and aldermen.

The discontinuance complained of was all that part of Market street covered by the Boston & Maine Extension Railroad, the proprietors of which had been permitted by their charter to extend their road through part of the city. The petitioner owned several lots on or near Market street, and offered to prove that the value of each had been lessened,' and the rent of one or more of them diminished, but it appeared that no one of the parcels bounded on that part of the street which had been discontinued, and that all were accessible by other public streets. The presiding judge ruled that the petitioner was not by law entitled to prove and recover any damages, because neither of his estates abutted on that part of Market street which was discontinued, and by his direction, a verdict was entered for the respondents. Upon exception to this ruling, the case was heard in the Supreme Court.

The Massachusetts Revised Statutes, chap. 24, sec. 11, provides for payment, if any damage shall be sustained by any person in their property by the laying out, altering or discontinuing of any highway.

Smith, Chief Justice, in overruling the exceptions, said: “ He (plaintiff) may feel the inconvenience (from shutting up of the street) more in consequence of the proximity of his lots an.d buildings, still it is a damage of like kind and not in its nature peculiar or specific. Though a man who lives near an obstruction in a highway, and has occasion to pass it daily, suffers a damage altogether greater than one who lives at a distance, he can have no private action, because in its nature it is common and public. The damage complained of in this case, though it may be greater in degree in consequence of the proximity of the petitioner’s estate, does not differ in kind from that of the other members of the community who would have occasion, more or less frequently, to pass over the discontinued highway;

The petitioner has free access to all his lots. The burden ohis complaint, therefore, is that in going to some of his houses in some directions, he may be obliged to go farther than he otherwise would. So must the inhabitants of the south end of the city or the citizens of other towns, with their teams or carriages, who have a right to use the discontinued highway.” To the same effect is Davis v. The Com’rs, 153 Mass. 218; Hammond v. Com’rs, 154 Mass. 509; Stanwood v. City of Malden, 157 Mass. 17.

In City of Chicago v. Building Ass’n, 102 Ill., 379, it was proposed to vacate a street, and a property-owner three and one half blocks away, filed a bill to prevent it, alleging that it would thereby suffer great damage to its property. The Supreme Court reversed the decree of the lower court, granting the prayer of the bill on the ground that no special or peculiar injury was shown, since it could not be reasonably claimed that the closing of the street in any degree interfered with access to its lot, or its use and enjoyment. Though this property had been specially assessed as benefited by the opening of the portion of the street now to be vacated, it was held that this gave it no special property in that part of the street.

In Kimball v. Com’r, 74 Mich. 699, petition for certiorari to review action of commissioner discontinuing Centre street from Hall street to Home street, plaintiff claimed to own land on the south side of Home street and east side .of Centre street. Notice of proceedings was given only to landowners on that portion of street discontinued. The Michigan statute,- which allowed highways or parts of highways to be discontinued, required notice to be given to owners and occupants of land through or adjoining which it was proposed to discontinue and also that the commissioner should view the premises, determine the necessity of discontinuing the highway, and appraise the damage on account thereof, if any is claimed. It was held that the meaning of this was to confine the adjacency to the part discontinued, and that the only persons who can complain must be such as are directly'affected in their convenience of access to their property, and who are liable to lose their immediate means of communication, and that plaintiff, who had another mode of access to his property, had no interest in the proceeding.

In Shaubut v. Railroad Co., 21 Minn., 502, plaintiff was an owner of land upon a street, another part of which was unlawfully obstructed by the defendant. Held, that the injury suffered by plaintiff in consequence of the obstruction was an injury in common with the public at Targe, the only difference in the injury suffered by him and that suffered by the public being a difference in degree, not in kind. The court said: “ What might be the plaintiff’s rights if the obstructions had the effect to cut off the access to his land, we need not inquire, since both diagram and the testimony show he has that access through other streets without the necessity of passing over the obstructed portion of the street.”

In Brakken v. Railroad, 29 Minn. 41, where the question of obstructing access arose, the court held that the owner of land abutting on a public street has, as such, a special interest in the street, different from that of the general public, as to entitle him to maintain a private suit for damages against the party who wrongfully obstructs the street in front of or near his property so as practically to cut off public access to it.

In re Centre Street, 115 Pa. 247, does not sustain the right of property owners on the same street not abutting on the part vacated to recover special damages. By an examination of the case in the court below, reported in 17 W. N. C. 309, it appears that the plaintiff’s property abutted on Centre street.

In re Howard Street, 142 Pa. 601, decides that the act of 1858 is constitutional, and was in full operation in the city of Philadelphia on January 25, 1889, and does not touch the question under consideration.

It is claimed by the appellees that Mellor’s Executor et al., v. City of Philadelphia, 160 Pa. 614, rules this case, and fully sustains the court below on the question of injury and damage. To this proposition the writer of this opinion, and the majority of this court do not assent. The facts in Mellor v. Philadelphia as stated by the Reporter are as follows: “At the trial it appeared that the sixteen plaintiffs owned houses and lots on Trenton avenue, a narrow street running east and west along the Pennsylvania Railroad in Frankford. Ten of the properties were between Orthodox and Margaret streets. Six of the properties were on the west of Orthodox street. The first group of ten properties had ingress and egress by Trenton avenue to enter Orthodox or Margaret street. The second group of six properties had ingress and egress by Trenton avenue to Orthodox street or Oxford street, which was eight hundred and fifty feet farther west. Councils of the city of Philadelphia, deeming it advisable to do away with grade-crossings, passed an ordinance to lower the grade of Orthodox and Margaret streets, and thus carrying them under the railroad. In carrying out this work, the streets were depressed about fifteen (15) feet, cutting off access by vehicles to and from the first group of ten properties, and also cutting off access by way of Orthodox street to the second group of six houses.” In his charge, speaking of the western group of six properties,. Judge Thayer said: “If - you find that the cutting down of Orthodox street has materially impaired the facilities which the owners of these properties had before, getting into and out of their properties; that Oxford cannot afford them the facilities-which they had before because the road between Oxford street,, in front of these houses, and Orthodox street is so narrow that wagons and carts cannot conveniently enter and turn round; if you find that the property has been materially damaged by that, and that they have but one way of egress from their, prop erties which is in itself a defective way, putting them to great-inconvenience and affecting the value of the property, then I charge you that such an injury is within the protection of the constitution, and you should find for the plaintiffs for whatever damages the properties have actually sustained in consequence of the altered grade.”

Ünder the facts thus stated and found, the jury assessed damages in favor of the owners of both groups of properties, on the principle that where access to properties is practically destroyed, a special injury results, though the property does not abut on the street or part of street vacated or changed.

In the case last above cited, two streets running at right angles to Trenton street were so changed in grade by depression as to render Trenton avenue impossible of access between the two streets, and on account of the narrowness of Trenton street on the city plan, it being so narrow between Orthodox and Oxford streets that wagons and carts could not conveniently enter and turn round, there was no difference in the degree of injury, and under the peculiar facts of the case, both groups of properties received special injury by- being deprived of the means of egress and ingress.

In this case, no such facts exist. That the properties in question on Melon street were deprived of their outlet eastward, is undisputed. It is equally undisputed that Melon street, before the vacation, was an open, public highway from Ridge avenue to the westerly side of Ninth street; that' it was forty-nine feet wide, including sidewalks, and twenty-five feet wide from curb to curb. And it is also undisputed that their outlet westward was not -in any way impaired. The western half of the properties were some of them as near Tenth street as Ninth street, and the extreme easterly property was only about one hundred feet nearer Ninth than Tenth street. The most that can be said is that these property owners were inconvenienced in being deprived of an additional outlet, but under the facts in this case, they suffered no special injury which the general public did not suffer 'in common with them, and they are, therefore, not entitled to damages.

The distinction between the case of Mellor’s Executor et al. v. Philadelphia, supra, and the case under consideration, is obvious. In the former case, the municipal authorities, when they depressed the grade of Orthodox street, knew from the plan of streets in the vicinity that Trenton street was so narrow between Orthodox and Oxford streets that access by way of Oxford street was practically destroyed, and that a special injury to every property between these streets must result. This element of damage pervaded the case and was fairly submitted to the jury, at the trial, and the judgment was affirmed. In the case under consideration, the appellees were inconvenienced, and the facts clearly show that their access to the plan of general streets by way of Tenth street, is open, ample, unobstructed and unimpaired, and from the facts thus established, it follows that the appellees have sustained no special injury. In the former case, a cul de sac resulted that could not be used. In the case under consideration, a cul de sac also resulted, but no owner of property abutting thereon is deprived of free access to his property.

In Lawrence v. Philadelphia, 154 Pa. 20, we have the proposition of the owner of thirteen adjoining houses and lots, four of which fronted on Second street in the city of Philadelphia, four adjoining on Venango street, and five others adjoining on Cooper street. Second street crossed Venango street and Cooper street at right angles. The grade of Second street was raised nine feet, and this change of grade cut off access to the properties on Venango and Cooper streets, absolutely, by way of Second street. Under the facts thus stated, the court held that the plaintiff could recover damages to his property fronting on Second street, caused by the change of its grade, but could not recover as to his properties on Venango and Cooper streets. In the report of that case, the facts do not fully appear, but the plaintiff could have been denied the right to damages to his property on Venango and Cooper streets only, on the ground that he had free access thereto through other streets connecting with the general system of streets in the city of Philadelphia. Thus explained, this case fully supports the appellant’s position.

It is urged by the appellees that because the jury of view gave special damages to each of the thirteen property owners, it therefore follows by implication that their finding was based upon some facts warranting the giving of such damages. But such implication is rebutted and must fall in connection with the undisputed facts which the record discloses, to wit, that before the vacation, Melon street was an open, public highway, nearly fifty feet wide, and the outlet through this open highway to Tenth street was not in any way impaired by the vacation. Under this view of the case, it follows that the second, third, fourth, ninth and eleventh assignments of error must be sustained.

The fifth, sixth and seventh assignments of error are overruled. While the jury of view, under the terms of the petition filed in the court below, had no right to ascertain and report any damage caused by the vacation of Ninth street, yet, having done so, in connection with the damage caused by the vacation of Melon street, if we were to affirm the court below this court could order the filing of a proper and sufficient release on the part of the appellees as to all damage caused by the vacation of Ninth street so as to thoroughly protect the rights of the appellant.

In considering the eighth and twelfth assignments of error, we must first notice the character of the question submitted to the jury of view on the subject of benefits. By the provisions of the act of 1858, we have seen that the first duty of the jury of view was to ascertain and report to the court what damages the parties claiming were entitled to; and second, to assess and apportion the same among and against such owners of land as shall be benefited by such opening, widening or vacating any such road or street.”

This statutory provision, if followed, was a sure guide to the jury of view in assessing, apportioning and reporting benefits. They were commanded to ascertain the owners of land benefited and report the same to the court; like any other statutory submission, their award must be in conformity with the statutory requirements, and if it fails in that respect, it cannot be sustained. In their report, the jury found that all the land abutting on both sides of the portion of Melon street vacated, belonged to the Philadelphia and Reading Railroad Company. The jury further found “ that in the construction of the Philadelphia & Reading Terminal Railroad and its necessary works, that company had entered upon and occupied a portion of Ninth street so stricken from the city plan, and also that portion of Melon street which has been stricken from the city plan, as aforesaid.” And further, “ that the Philadelphia & Reading Terminal Railroad Company is specially benefited to an amount not less than $9,750.”

Nowhere in the viewers’ report does it appear that the Philadelphia & Reading Terminal Railroad Company was the owner of any land benefited at the time the report was made and filed. If that company was not the owner of land benefited, it was not liable to assessment for benefits; if it was, then it was the imperative duty of the jury to affirmatively find and report that fact to the court. Such is the command of the statute.

In Reitenbaugh v. Chester Valley R. R. Co., 21 Pa. 105, Mr. Justice Woodward says: “But to enable the court to determine in either case whether the viewers have confined their assessment of damages to the subject-matter provided for in the general law, or in special acts of incorporation, it is apparent the report should exhibit the grounds of the assessment.”

In this case, the jury have reported that the Philadelphia & Reading Terminal Railroad Company is benefited, but they did not find another equally important fact prescribed by the statute, to wit, that the said company was the owner of land benefited. We are asked by the appellees to find the necessary ownership of land in the Reading Terminal Railroad Company from the viewers’ report, by implication ; if we do, the implication must be a necessary implication. Does it follow of necessity that because the appellant was in actual occupancy of a portion of Melon street vacated, it was therefore the owner of land as contemplated by the statutory provision? Whether the company is there in possession of the vacated street for one year or one hundred years, whether as lessee or licensee, does npt appear. From the fact of occupancy, ownership does not follow by necessary implication.

It is also urged that from the fact that the jury found that the appellant was benefited in the sum of at least $9,750, therefore, by implication it follows from the finding of that fact that the company must have been the owner of land, or the jury would not have found it was benefited. Such a proposition answers itself, for the fact that the jury found the appellant benefited, in no way implies its ownership of land.

In Centre Street, 115 Pa. 247, the report of the jury stated that in consequence of the vacation of the street, the petition ers had received special damage, and that the land owned by the Pennsylvania & Schuylkill Valley Railroad Company in the locality of said portion of said street, had received special benefit from said vacation. This was held a sufficient description of property and ownership, and warranted the jury in assessing the benefits against the company. That case, however, is not an authority sustaining the position of the appellees; in fact, it is to the contrary. The assessment and apportionment of benefits not appearing to be against the owner of land in the report of viewers filed in the court below, said report therefore, cannot be sustained. The eighth and twelfth assignments of error are sustained.

The judgment is reversed and the report of the jury of view set aside, at the cost of the appellees.