Curran v. East Pittsburg Borough

Citations

• 20 Pa. Super. 590
• 1902 Pa. Super. LEXIS 283

Syllabus

<p>Municipalities — Eminent domain — Damages—Remedy—Public improvements.</p> <p>The absolute liability for injury to property imposed by the constitution, and putting it on the same footing as a talcing for public use, is such injury only as is the direct, immediate and necessary or unavoidable consequence of the act ot' eminent domain itself, irrespective of care or negligence in the doing of it. For such injury a proceeding before viewers is the appropriate remedy. But for injuries by negligent performance of the work, the remedy must be by action of trespass.</p> <p>In applying this rule another equally important principle is to be kept in mind, namely, that the discretionary power to construct sewers and other improvements, and to select the plan is vested in the municipal authorities. When it is said that the injury for which damages may be awarded in proceedings before viewers must be the unavoidable consequence of the act of eminent domain, it is clearly not meant that the claimant may be turned out of court merely because, in the opinion of the viewers, the court or the jury, a different, and in other respects equally good, plan might have been adopted by the city which would have worked no injury to adjoining properties. The question is, was the injury the necessary consequence of the execution of the plan adopted, or was it the consequence of negligence in executing the plan ? In the former case the damages may be assessed in this form of proceeding, in the other case not.</p> <p>Where a borough in making a street improvement changes the grade so as to fill up a space where the drain of a property owner formerly emptied, and thus cut off the drain, and does not connect the drain with a sewer which was part of the improvement; and the work is done without negligence and in pursuance of a general plan of improvement adopted by the borough, the landowner’s remedy for the injury is by proceedings before viewers and not by an action of trespass.</p>