Appeal, No. 125, Jan. T., 1953, from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1952, No. 5352, in matter of the Reconstruction of Mill Creek Sewer in Forty-sixth Street and Farragut Street etc. Order reversed.
George T. Steeley, for appellant.
Albert A. Drucker, Assistant City Solicitor, with him Abraham L. Freedman, City Solicitor, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The appellant is the owner of a lot of ground, improved with a three-story building, at a corner where Farragut and Market Streets, Philadelphia, intersect. The council of the city, by ordinance, directed the Director of Public Works to enter into contracts for the reconstruction of "Mill Creek Sewer" in Farragut Street within certain specified longitudinal limits. Pursuant to such direction, the Director entered into contracts for the reconstruction of the sewer. In carrying out the work, the contractor excavated Farragut Street to a depth varying from thirty-five to fifty-one feet. The old sewer was removed and a new one of different dimensions was laid. For the removal of rock and other obstacles to the excavation, blasting was used. After the new sewer was laid, the excavation was refilled with earth which was tamped heavily. The
work caused a subsidence in the appellant's ground and a loosening, cracking and dislocation of the building erected thereon to its consequent injury. There was no taking of the appellant's property.
The owner petitioned the court below for the appointment of a board of view to assess the damages to his property due to the reconstruction of the sewer. The court granted the petition and constituted a board. Thereafter the city moved to vacate the order of appointment. A rule was granted on the property owner to show cause why the board of view should not be vacated. After answer by the owner and argument of the matter, the court made the rule absolute. From that order, the property owner took this appeal.
The questions involved are (1) whether the property owner has a claim for damages against the municipality in the circumstances shown and, if so, (2) whether a board of view is the proper tribunal for the ascertainment and assessment of such damages.
Prior to the Constitution of 1874 damages were not recoverable for non-tortious public injury to or destruction of private property without a physical taking. Article VII, Section IV, of the preceding Constitution of 1838 had provided that "The legislature shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporation or individual to make compensation to the owners of said property..." and Article IX, Section X, declared "nor shall any man's property be taken or applied to public use... without just compensation being made." The interpretation uniformly given these provisions was to limit them to the requirement of a right of ...