Mr. Justice Green
delivered the opinion of the court, November 20th 1882.
This was an action of trespass quare clausum fregit. The plaintiff, a property owner, claimed that the defendant, an incorporated borough, had taken a part of his land in grading a public street, and sought to recover damages for the taking, upon the ground that the action of the borough was illegal. The learned-court below very carefully and correctly instructed the jury that, “in improving the street the borough had no right to go beyond its limits, and if the improvement did, it was a trespass upon private property,” and they left to the jury distinctly the question, “did this improvement along the plaintiff’s property extend beyond the line of the street?” The [399] learned judge further instructed the jury that if the cutting did extend over the plaintiff’s line, so as to take any part of his land, they should find a verdict for the plaintiff and give him such damages as would compensate him for the injury, and pointed out all the elements of damage which might be allowed for. The instructions as to damages were entirely favorable to the plaintiff and are not complained of by any assignment of error.
The jury found for the defendant and thereby determined that none of the plaintiff’s land had been taken. The testimony upon this subject was quite voluminous, it was the exclusive province of the jury to decide upon it, and we have no power to review their action, indeed we are not asked to do so. Viewed therefore as an action of trespass for the taking of land, the case of the plaintiff as now determined is without the necessary facts to sustain it.
There are two assignments of error which relate, one to the rejection and the other to the admission of testimony. We think neither of them is sustained. The surveyor’s plan or draft was not offered as a mere drawing or diagram to show the location of the premises. It was offered for the distinct purpose of fixing the location of the road, and showing the amount of ground taken from the plaintiff. But the witness was a mere surveyor who had no knowledge of the location of the road and the material from which his draft was constructed consisted of plans made by other persons, some deeds and other documents, and some verbal information. His draft doubtless represented his own opinion or judgment of what the location of the road ought to be, but it could in no manner establish the actual location of the road, and was clearly inadmissible for that purpose. Indeed the learned counsel for the plaintiff admit that it was not intrinsically or per se competent evidence.
We see no error in the admission of the testimony in relation to the citizens’ committee. The Act of April 3d 1867, and the ordinance of July 10th 1876, had already been given in evidence by the plaintiff, and were again offered by the defendant in connection with the offer to show by this testimony, that the provisions of the Act and the ordinance had been strictly complied with. Surely the defendant had the right to make this defence. Whether, when the evidence was all in, the defence, was made out in fact, or was available in law, was another and distinct matter, but it certainly constituted no valid objection to the admission of the testimony. The defendant had the right to set up the Act and the ordinance as a defence to the action, and to prove the facts necessary to establish that defence, but if when they offered proof of the facts the offer was to be rejected, the right itself would be practically denied. As the court [400] subsequently ruled that this defence was not available, no harm was done by the admission of the testimony. Irrespective of this consideration the testimony was offered and was clearly admissible, as affecting the question of damages. It would tend to show that there were no circumstances of wanton or intentional injury.
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Mr. Justice Green
delivered the opinion of the court, November 20th 1882.
This was an action of trespass quare clausum fregit. The plaintiff, a property owner, claimed that the defendant, an incorporated borough, had taken a part of his land in grading a public street, and sought to recover damages for the taking, upon the ground that the action of the borough was illegal. The learned-court below very carefully and correctly instructed the jury that, “in improving the street the borough had no right to go beyond its limits, and if the improvement did, it was a trespass upon private property,” and they left to the jury distinctly the question, “did this improvement along the plaintiff’s property extend beyond the line of the street?” The [399] learned judge further instructed the jury that if the cutting did extend over the plaintiff’s line, so as to take any part of his land, they should find a verdict for the plaintiff and give him such damages as would compensate him for the injury, and pointed out all the elements of damage which might be allowed for. The instructions as to damages were entirely favorable to the plaintiff and are not complained of by any assignment of error.
The jury found for the defendant and thereby determined that none of the plaintiff’s land had been taken. The testimony upon this subject was quite voluminous, it was the exclusive province of the jury to decide upon it, and we have no power to review their action, indeed we are not asked to do so. Viewed therefore as an action of trespass for the taking of land, the case of the plaintiff as now determined is without the necessary facts to sustain it.
There are two assignments of error which relate, one to the rejection and the other to the admission of testimony. We think neither of them is sustained. The surveyor’s plan or draft was not offered as a mere drawing or diagram to show the location of the premises. It was offered for the distinct purpose of fixing the location of the road, and showing the amount of ground taken from the plaintiff. But the witness was a mere surveyor who had no knowledge of the location of the road and the material from which his draft was constructed consisted of plans made by other persons, some deeds and other documents, and some verbal information. His draft doubtless represented his own opinion or judgment of what the location of the road ought to be, but it could in no manner establish the actual location of the road, and was clearly inadmissible for that purpose. Indeed the learned counsel for the plaintiff admit that it was not intrinsically or per se competent evidence.
We see no error in the admission of the testimony in relation to the citizens’ committee. The Act of April 3d 1867, and the ordinance of July 10th 1876, had already been given in evidence by the plaintiff, and were again offered by the defendant in connection with the offer to show by this testimony, that the provisions of the Act and the ordinance had been strictly complied with. Surely the defendant had the right to make this defence. Whether, when the evidence was all in, the defence, was made out in fact, or was available in law, was another and distinct matter, but it certainly constituted no valid objection to the admission of the testimony. The defendant had the right to set up the Act and the ordinance as a defence to the action, and to prove the facts necessary to establish that defence, but if when they offered proof of the facts the offer was to be rejected, the right itself would be practically denied. As the court [400] subsequently ruled that this defence was not available, no harm was done by the admission of the testimony. Irrespective of this consideration the testimony was offered and was clearly admissible, as affecting the question of damages. It would tend to show that there were no circumstances of wanton or intentional injury.
But one material question remains. It was claimed that there could be a recovery in this form of action on account of the provision in the constitution of 1874, which requires just compensation to be made for property taken, in jured or destroyed, in the construction or enlargement of public works. The language of the plaintiff’s first point is so framed as that it does not very distinctly raise the question whether trespass quare clausum fregit can bo maintained for an injury without a taking. But granting that it does, we think the answer of the court below was entirely correct. The provision of the constitution without, doubt was intended to secure compensation as well for an injury, as for a taking. But compensation is the price of the privilege to inflict the injury, and not a penalty for an illegal act. It is to be recovered, not by an action founded upon a tort which presupposes an illegal act, but by a proceeding for the assessment of the damage done by the injury sustained. The value of the damage when ascertained and paid, is the consideration of the right to continue the maintenance of the work or structure which occasions the injury, whereas in trespass an obligation to discontinue the injury after verdict arises, which if necesssary will be enforced by successive verdicts. The court was right therefore in saying that the constitutional provision was not applicable to the case, considered as an action of trespass quare clausum fregit. Of course, in the ordinary case of the taking of land for a public work, if the corporation or municipality has not complied with the requirements of the law which authorizes the taking, a trespass is committed and a recovery may be had in an action of trespass or ejectment. But here there was no trespass, as the jury has so decided. If it Avas intended by the point to raise the question whether a recovery could be had for a consequential injury, where the legal requirements were not complied with, the reply is that this was notan action for a consequential injury, and therefore that question cannot arise. But, in addition to that consideration, the Legislature has provided a special remedy for that kind of injury by the Act of May 24th 1878, P. L. p. 129, and that form of proceeding must therefore he adopted in all cases coming within its terms. The Act provides that in all cases where the proper authorities of any borough may at any time change the grade or lines of any street or alley, or in any way alter or enlarge the same, thereby causing damage to the owner or owners of property [401] abutting thereon, without the consent of the owner, or in case they fail to agree with the owner for the proper compensation for the damage so done, or likely to be done or sustained by reason thereof, the court of common pleas of the proper county, on application of either the borough or the owner shall appoint viewers, who shall proceed to assess the damages in the mode pointed out by the Act. This being the method established by law for the recovery of damages for changing grades or lines of streets or alleys in the boroughs of the Commonwealth, it must be strictly pursued in accordance with the provisions of the Act of March 21st 1806, § 13, which enacts that, in all cases where a remedy is prescribed or duty enjoined or directed to be done by any Act or Acts of Assembly of this Commonwealth, the directions of the said Acts'shall be strictly pursued and no penalty, shall be inflicted, or anything done agreeably to the provisions of the common law in such cases further than shall be necessary for carrying such Act or Acts into effect. See 1 Purd. Dig. 58 pl. 5 and cases cited in note (a): Criswell v. Clugh, 3 W. 330; Oliphant v. Smith, 3 P. R. 180; Thomas v. Simpson, 3 Barr 68; Ensworth v. Commonwealth, 2 P. F. S. 324. We see no error in the other assignments. Undoubtedly the authority to grade and pave streets is among the implied powers of a municipal corporation: City of Williamsport v. Commonwealth, 3 Norr. 493. The eighth clause of the third section of the general borough law (P. L. of 1851, p. 323) requiring notice to be given of a proposition to fix or change the roads, streets, &c., of a borough is merely directory, and the omission to give the notice does not invalidate the proceeding: Pittsburgh v. Coursin, 24 P. F. S. 400.
There was certainly no error in the court saying to the jury that the width and location of Fifth street opposite the plaintiff’s house was a question of fact to be determined by the jury under all the evidence, nor in saying that if the fences corresponded with a width of fifty feet for twenty years it would be good evidence that the road was fifty feet wide. We see no error in the comments complained of in the eighth assignment. As the width of the road was a controverted fact and the plaintiff’s third point practically asked the court to decide that question, we think there was no error in refusing the point and leaving the question to the jury.
Judgment affirmed.