Opinion by
Mr. Justice Elkin,
There can be no proper disposition of this case without a determination of the question of title to the fee in Fifth street. If appellee, an abutting property owner, has no title to the fee in the street upon which the railroad is constructed, he cannot recover compensation in the nature of damages for property taken, injured or destroyed, because under such circumstances he would not suffer a legal injury. The first contention of learned counsel for appellant is that the town of Beaver was laid out under legislative authority on lands belonging to the state, and the streets and alleys having thus been dedicated to public use, the subsequent conveyance of lots to private owners did not divest the title of the commonwealth to the streets and alleys. This position is predicated on the theory that the commonwealth holds the streets as trustee for the public, and is not governed by the same rule as an individual grantor. A grant by the commonwealth is taken most strongly [595]*595against the grantee, while a grant by an individual is taken most strongly against the grantor. This is the general rule, but in our view of the present case it has no application. The town of Beaver was not laid out by the exercise of the sovereign power of the state, but by express legislative authority, directing the proper officers of the commonwealth, the owner of the soil, to lay out the same for the purpose of sale to private purchasers. The purpose was to encourage the building of a town at that point. The officers of the commonwealth had no power to act in the premises except such as was conferred by the legislature, and this power when conferred authorized the laying out of a town and provided for the sale of lots. If the plan of lots in the present case had been laid out by an individual in precisely the same manner as the commonwealth has done, and lots had been sold with streets as boundaries, the title of the fee to the center of the streets would have passed to the purchasers. This is the rule of our cases from Paul v. Carver, 26 Pa. 223, to Neely v. Phila., 212 Pa. 551. There is no sufficient reason why the same rule should not apply to the commonwealth under the facts of the case at bar. The reasonable construction to be placed upon the acts of assembly authorizing the laying out of the town and the sale of lots in this case, and of the acts of the officers entrusted with the execution of these powers, is that the legislature intended the purchasers of lots to enjoy every privilege and be invested with every legal right passing to any purchaser of a lot abutting on a public street, and this would pass the title of the fee to the center of the street to the purchaser as in the case of a purchase from an individual grantor. It is further contended that appellee is not the owner of the fee in any part of Fifth street as at present located, even if the title to the whole street is not in the commonwealth. This raises an interesting question and one not free from difficulty. In order to understand it the facts must be briefly stated. The town of Beaver was laid out under the authority of an act of assembly passed in 1791. The site was a part of the depreciation tract north of the Ohio river, and the title was in the commonwealth. The surveyor general caused a survey to be made, and prepared a plan showing lots, [596]*596streets, alleys and public squares. The principal streets were marked of the width of 100 feet, with the exception of Buffalo street on one side and Fifth street on the other, which were laid out to be of the width of 200 feet. The survey was approved by act of 1793, and there can be no doubt that there was a dedication of the streets to public use of the designated widths. If Fifth street still remains of the width of 200 feet, there can be no recovery in this case, because the railroad is not located on that part of the street as originally dedicated to which the appellee could claim title. It clearly appears, however, from the evidence that Fifth street was never opened to the width originally plotted, but has always been used and regarded as of the width of 100 feet. In itself this would not defeat the original dedication because the rule is that the character of the highway and the right of the public at all times to use it as such cannot be lost by nonuser. This rule, however, must be understood to apply after the rights of the public in general or of individual property owners in particular, have attached. Even in the case of a private owner who lays out a plan of lots with plotted streets and alleys of certain widths, thus making a dedication for public use, there is no reason why he may not change or alter his plan of lots, streets, and alleys if he does so before the rights of the public or of individuals become vested. If a private owner may change or alter a plan of lots under these circumstances, why cannot the commonwealth do the same thing if done in a proper manner? The surveyor general who caused the plan of lots to be laid out had no greater authority than the legislature gave him, and the power which gave can take away so long as the rights of others are not disturbed. This is what was done in the present case. Fifth street separated the inlots from the outlots on the original plan. In 1803, before any of the inlots or of the outlots abutting on Fifth street had been sold to anyone, and before the street had been opened or used as a public highway, the commonwealth, under the authority of an act of assembly, granted a patent of the outlots to the trustees of Beaver Academy, and in making the survey of this grant by courses and distances, included within its boundaries the north half of Fifth street as [597]*597originally dedicated. There were no sales of either inlots or outlots to private owners for more than two years after the commonwealth had conveyed the outlots, including 100 feet, being the north half of Fifth street, to the Beaver Academy. In 1806 an act was passed authorizing the trustees of the academy to make sale of certain lots held by that institution under the prior grant. As authorized by this act the outlots were sold, and the appellee derives his title from this source. It is clear, therefore, that from the date of the patent to Beaver Academy in 1803 down to the present owner, one-half of Fifth street as originally dedicated, has been included within the boundaries of the outlots now held by the appellee. It further appears that the outlots belonging to appellee and which are the subject-matter of the present controversy have been described in the several deeds of conveyance forming the chain of title as bounded by Fifth street on the south, and Fifth street on the south which bound these lots has only been 100 feet wide from the beginning of these conveyances to the present time. Fifth street has always been regarded by the borough and by abutting property owners as of the width of 100 feet and no more. These facts clearly indicate an intention on the part of the commonwealth soon after the original dedication and before any adverse property rights had become vested, to reduce the width of Fifth street as originally dedicated and make it of the same width as the other principal streets of the borough. We can see no good reason in law why this cannot be done. The commonwealth herself, the proprietor of the soil, altered the width of the plotted street by making an absolute conveyance of the title to the north half of it to the trustees of Beaver Academy and in making the survey of the academy tract, located its southern boundary on the north line of Fifth street reduced to the width of 100 feet. The conveyances since that time have given Fifth street thus reduced in width as the southern boundary of these lots.
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Opinion by
Mr. Justice Elkin,
There can be no proper disposition of this case without a determination of the question of title to the fee in Fifth street. If appellee, an abutting property owner, has no title to the fee in the street upon which the railroad is constructed, he cannot recover compensation in the nature of damages for property taken, injured or destroyed, because under such circumstances he would not suffer a legal injury. The first contention of learned counsel for appellant is that the town of Beaver was laid out under legislative authority on lands belonging to the state, and the streets and alleys having thus been dedicated to public use, the subsequent conveyance of lots to private owners did not divest the title of the commonwealth to the streets and alleys. This position is predicated on the theory that the commonwealth holds the streets as trustee for the public, and is not governed by the same rule as an individual grantor. A grant by the commonwealth is taken most strongly [595]*595against the grantee, while a grant by an individual is taken most strongly against the grantor. This is the general rule, but in our view of the present case it has no application. The town of Beaver was not laid out by the exercise of the sovereign power of the state, but by express legislative authority, directing the proper officers of the commonwealth, the owner of the soil, to lay out the same for the purpose of sale to private purchasers. The purpose was to encourage the building of a town at that point. The officers of the commonwealth had no power to act in the premises except such as was conferred by the legislature, and this power when conferred authorized the laying out of a town and provided for the sale of lots. If the plan of lots in the present case had been laid out by an individual in precisely the same manner as the commonwealth has done, and lots had been sold with streets as boundaries, the title of the fee to the center of the streets would have passed to the purchasers. This is the rule of our cases from Paul v. Carver, 26 Pa. 223, to Neely v. Phila., 212 Pa. 551. There is no sufficient reason why the same rule should not apply to the commonwealth under the facts of the case at bar. The reasonable construction to be placed upon the acts of assembly authorizing the laying out of the town and the sale of lots in this case, and of the acts of the officers entrusted with the execution of these powers, is that the legislature intended the purchasers of lots to enjoy every privilege and be invested with every legal right passing to any purchaser of a lot abutting on a public street, and this would pass the title of the fee to the center of the street to the purchaser as in the case of a purchase from an individual grantor. It is further contended that appellee is not the owner of the fee in any part of Fifth street as at present located, even if the title to the whole street is not in the commonwealth. This raises an interesting question and one not free from difficulty. In order to understand it the facts must be briefly stated. The town of Beaver was laid out under the authority of an act of assembly passed in 1791. The site was a part of the depreciation tract north of the Ohio river, and the title was in the commonwealth. The surveyor general caused a survey to be made, and prepared a plan showing lots, [596]*596streets, alleys and public squares. The principal streets were marked of the width of 100 feet, with the exception of Buffalo street on one side and Fifth street on the other, which were laid out to be of the width of 200 feet. The survey was approved by act of 1793, and there can be no doubt that there was a dedication of the streets to public use of the designated widths. If Fifth street still remains of the width of 200 feet, there can be no recovery in this case, because the railroad is not located on that part of the street as originally dedicated to which the appellee could claim title. It clearly appears, however, from the evidence that Fifth street was never opened to the width originally plotted, but has always been used and regarded as of the width of 100 feet. In itself this would not defeat the original dedication because the rule is that the character of the highway and the right of the public at all times to use it as such cannot be lost by nonuser. This rule, however, must be understood to apply after the rights of the public in general or of individual property owners in particular, have attached. Even in the case of a private owner who lays out a plan of lots with plotted streets and alleys of certain widths, thus making a dedication for public use, there is no reason why he may not change or alter his plan of lots, streets, and alleys if he does so before the rights of the public or of individuals become vested. If a private owner may change or alter a plan of lots under these circumstances, why cannot the commonwealth do the same thing if done in a proper manner? The surveyor general who caused the plan of lots to be laid out had no greater authority than the legislature gave him, and the power which gave can take away so long as the rights of others are not disturbed. This is what was done in the present case. Fifth street separated the inlots from the outlots on the original plan. In 1803, before any of the inlots or of the outlots abutting on Fifth street had been sold to anyone, and before the street had been opened or used as a public highway, the commonwealth, under the authority of an act of assembly, granted a patent of the outlots to the trustees of Beaver Academy, and in making the survey of this grant by courses and distances, included within its boundaries the north half of Fifth street as [597]*597originally dedicated. There were no sales of either inlots or outlots to private owners for more than two years after the commonwealth had conveyed the outlots, including 100 feet, being the north half of Fifth street, to the Beaver Academy. In 1806 an act was passed authorizing the trustees of the academy to make sale of certain lots held by that institution under the prior grant. As authorized by this act the outlots were sold, and the appellee derives his title from this source. It is clear, therefore, that from the date of the patent to Beaver Academy in 1803 down to the present owner, one-half of Fifth street as originally dedicated, has been included within the boundaries of the outlots now held by the appellee. It further appears that the outlots belonging to appellee and which are the subject-matter of the present controversy have been described in the several deeds of conveyance forming the chain of title as bounded by Fifth street on the south, and Fifth street on the south which bound these lots has only been 100 feet wide from the beginning of these conveyances to the present time. Fifth street has always been regarded by the borough and by abutting property owners as of the width of 100 feet and no more. These facts clearly indicate an intention on the part of the commonwealth soon after the original dedication and before any adverse property rights had become vested, to reduce the width of Fifth street as originally dedicated and make it of the same width as the other principal streets of the borough. We can see no good reason in law why this cannot be done. The commonwealth herself, the proprietor of the soil, altered the width of the plotted street by making an absolute conveyance of the title to the north half of it to the trustees of Beaver Academy and in making the survey of the academy tract, located its southern boundary on the north line of Fifth street reduced to the width of 100 feet. The conveyances since that time have given Fifth street thus reduced in width as the southern boundary of these lots. This has been the situation for more than a century, and we have not been convinced that there is any legal reason for disturbing it. Under these circumstances, we must regard the width of Fifth street as 100 feet, and with the width of the [598]*598street thus fixed, it follows under the deeds of conveyance that appellee is the owner of the title to the center of it, and the railroad having been located in the center of the street, part of the construction is necessarily upon the fee of appellee.
Another question to be determined is what is the proper measure of damages, if any injury has been suffered, under the facts of this case. The appellant company has a charter from the commonwealth to construct a railroad and has obtained municipal consent to lay its tracks in the center of Fifth street. Prior to the adoption of the new constitution, abutting property owners, who sustained injuries resulting from the construction of a railroad upon a public street could not recover damages. It was uniformly held that such damages were damnum absque injuria. Section 8 of art. 16 of the constitution was intended to remedy what was considered a hardship under the old rule by providing that when private property is taken for public use just compensation shall be made for property so “taken, injured or destroyed.” This section of the constitution has been the source of much contention and our earlier cases indicate a difference of view as to its proper interpretation, but the rule has been finally settled that there must be either an actual taking of or positive and visible injury to the property of an abutting owner on the street before there can be a recovery of damages. The construction of a railroad upon a public street already dedicated to public use as a highway imposes an additional servitude upon the owner of the fee, and one not contemplated when the street was originally laid out. In this sense the abutting owner has been injured within the meaning of the constitution and for any special injury suffered by the additional servitude imposed he is entitled to just compensation. The right of action accrues when the railroad is constructed. This is the doctrine of Penna. S. V. Railroad Co. v. Walsh, 124 Pa. 544; Penna. S. V. Railroad Co. v. Ziemer, 124 Pa. 560; Penna. Railroad Co. v. Duncan, 129 Pa. 181; Jones v. Railroad, 151 Pa. 30. It must not be overlooked, however, that the foundation of the right of action is the allegation that the abutting property owner has suffered some special injury by reason of the additional [599]*599servitude upon the street caused by the construction of the railroad thereon. In some instances access to his property was interfered with, in others drainage was disturbed, and in others light and air were cut off. The injury to the complaining property owner must be special, different from that of the general public, else there can be no recovery. This, for the reason that the only claim for damages is on account of some special injury to the private owner in the construction .of the railroad, and he cannot recover for those inconveniences or discomforts which must be borne by the general public which live near a railroad. Title to the property either taken or injured must necessarily be in the abutting property owner who complains, because it is the taking of or injury to private property for which compensation is to be made. If no property be taken or injured, there is no damage to be compensated. In all such cases there can be no recovery unless special injuries are alleged and proven, and the proper measure of damages is the extent of those injuries to the abutting owner. It is true these special injuries may depreciate the value of the property, and we see no reason why inquiry should not be made as to the amount of depreciation in value caused by the special injuries about which complaint is made. In this connection, however, it should be observed that in Jones v. Railroad Company, 151 Pa. 30,' it was finally settled that noise, smoke and dust as well as other inconveniences and discomforts which must be borne by the general public and which are occasioned by the operation of the railroad, cannot be considered in estimating damages for special injuries in this class of cases. In the statement of claim the appellee complains that access to his property has been interfered with by the construction of the railroad upon the street, and this is the special injury for which he asks to be compensated in damages. The proper inquiry, therefore, is, has the construction of the railroad interfered with access to his property, and if so, what amount of damage has resulted to the property owner by reason of the alleged interference?
The fifth, sixth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth assignments of error are sustained.
Judgment reversed and a venire facias de novo awarded.