
    Smith, Appellant, v. Cheltenham Township.
    
      Road, law — Township of the first class — Change of grade — Damages Act of April 28,1899, P. L. 104.
    A township of the first class is not liable for damages to an abutting property occasioned by the change of grade of an existing highway within the limits of the township.
    Argued Dec. 3, 1907.
    Appeal, No. 87, Oct. T., 1907, by plaintiff, from judgment of C. P. Montgomery Co., Oct. T., 1906, No. 51, for defendant non obstante veredicto in case of Michael A. Smith v. Cheltenham Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages to real estate resulting from change of grade of a road.
    Verdict for plaintiff for $665. Subsequently the court entered judgment for defendant non obstante veredicto.
    Swartz, P. J., filing the following opinion:
    At the June sessions, 1889, the report of a jury of view laying out a public road in Cheltenham township was confirmed absolutely. The new highway was called Franldin avenue. In the latter part of the year 1889, the supervisors of the township started to open the road. An improvement company owned the land through which the road was laid out. This company agreed with the supervisors that it would build a bridge over a small water course where the same crosses the new highway. A very steep hill begins at the creek and the plaintiff’s property fronts on the road near the summit of this hill. In 1889 and 1890 the bridge was built. The supervisors cut down the hill at some points, as much as four feet. In front of the plaintiff’s property the cut was two or three feet. The township placed 'about one foot of dirt upon the bridge. It also opened side gutters and made the surface of the road in a passable condition for travel, although the grade of the hill remained so steep that few teams passed up the ascent. The grade was about twenty per centum. This was the condition of the highway in 1890. The supervisors repaired the highway from year to year and kept it in a passable condition for use, although the steep grade of the hill remained.
    The road continued in this condition for thirteen or fourteen years. The plaintiff built a house on his lot in 1894. The title to the lot was acquired in 1893 — that is, after the date of the work aforesaid on the highway in 1889 and 1890.
    By the Act of April 28,1899, P. L. 104, Cheltenham township became a township of the first class, and was organized as such in 1900.
    The township commissioners through their supervisors or workmen cut down Franklin avenue and thereby secured a better grade for the highway. This work was done between September, 1903, and November, 1905. In front of the plaintiff’s property the road was cut down or lowered about eight feet, including the cutting in 1890.
    The plaintiff brought his action in trespass to recover damages for the injury sustained in changing the. grade of the highway in front of his property. We submitted to the jury the question whether, under the evidence, the work done in 1903 to 1905 was the opening of the road or whether it was a change of grade from the opening in 1890. Counsel for the township contended that the road was not effectually opened.as required under the law until the work ended in 1905 — that the work in 1903 to 1905 was no more than the effectual opening of the highway. The jury under- our charge found that, the road was opened in 1890 and that the work, thirteen years later, was a change of grade.
    Two questions-arise, first, was there any evidence to be submitted to the jury of a change of grade by the township, and, secondly, if there was. a change of grade is the township liable for any damage that the plaintiff’s property sustained?
    If Franklin avenue were a street in a borough, the change made thirteen years after it was opened to travel, would constitute a change of grade, under the Act of May 24, 1878, P. L. 129: New Brighton Boro. v..United Presbyterian Church, 96 Pa. 331; Hendrick’s Appeal, 103 Pa. 358. Franklin avenue was opened in 1890. Considerable work was done upon the highway by the supervisors. The surface grade was changed at some points as much as four feet; a bridge was built to accommodate the public travel; the road was repaired from year to year, just as any other public road in the township. This condition continued for thirteen years when the road was lowered in front of the plaintiff’s property some five or six feet, so that it is now eight feet below the original surface grade. During the thirteen years there was no proceeding to compel the supervisors to cut down the grade of the hill so as to make it convenient for travel.
    While in the ordinary acceptation of the term, the jury, no doubt, was correct in finding that there was a change of grade, still it is evident that this highway was not opened in 1890, so as to provide a road convenient for public travel. The grade was left so steep that teams could not use it for the ordinary purposes of hauling. This is self-evident with an admitted grade of twenty per centum. “Whenever practicable the viewers shall lay out a road at an elevation not exceeding five * degrees (except at the crossing of ravines and streams) where by moderate filling and bridging the .declination of the road may be preserved within that limit.” - •
    What the township commissioners did in 1904 was no more than a reduction of the grade of this 'Steep hill. It is usual and ordinary for township supervisors to improve the grade of public roads as the demands of travel increase. A grade that is adequate in a sparsely settled community and where there is but a slight demand for the use of the road, may become entirely inadequate in time by reason of the changed condition of the neighborhood. In such cases it is usual for the supervisors to meet the advanced needs by improving the highway. The supervisors must keep the roads “ constantly in repair, and clear of all impediments to easy and convenient passage and travel.”
    The supervisors make proper grades from time to time and this is considered an incident to the keeping of the roads in repair and convenient for passage and travel. Where such change of grade is made by townships of the second class, no action lies against the township by an abutting owner for the injury sustained: Shoe v. Nether Providence Township, 3 Pa. Superior Ct. 137. Whatever grade maybe fixed by the supervisors is largely a matter of discretion with them and so long as the grade is changed to conform to the requirements of the general road law, an.abutting owner has no cause of complaint; his damages that were assessed when the road was laid out include all injury sustained by the subsequent change of grade: Wagner v. Salzburg Township, 132 Pa: 636; Winner v. Graner, 173 Pa. 43; Shoe v. Nether Providence Township, 3 Pa. Superior Ct. 137.
    When the road is laid out in a township of the second class this rule is well established.
    Franklin avenue when laid out was located in a township of the second class. The township continued of that class for more than ten years thereafter. If the damages when the road was laid out then covered the necessary grading of the highway, we do not see why the change in the classification should give an abutting owner a duplication of his damages.
    There is no evidence that the township commissioners by ordinance or by any other formal action fixed a new grade for Franklin avenue. When they cut down the hill they did so to improve the highway, for travel and passage. Had the township continued in the second class, the supervisors, no doubt, would in time have made the same improvement in the grade of the hill.
    
      Suppose, however, this was a change of grade as found by the jury under our charge and such change of grade was made by a township of the first class, is the plaintiff entitled to recover? Is there such a difference in the organization and standing of townships of the first and second class regarding public roads and changes in grade, that there is a liability for damages by the one class and not by the other?
    We think this inquiry is answered by the Act of April 28, 1899, P. L. 104, which makes the classification. Section 3 declares, “Except so far as modified by the provisions of this act, all existing laws relating to townships shall continue in force until changed, modified or repealed, as to either class of townships, by legislation relating expressly thereto.” In Dempster v. United Traction Co., 205 Pa. 70, the court,, in speaking of townships of the first class, declared, “The act of classification does not attempt to create a hybrid borough, neither township nor borough; it obviously intends to preserve the old township organization with all its powers and duties except where it expressly enacts otherwise. ” For many years it was well known that damages for change of grade in a township road could not be recovered, except so far as the original laying out of the road provided a method of recovery for the necessary change in grade. The damages were assessed under the original laying out of the road. We cannot assume that the legislature intended to give a new cause of action without some intimation of a change so radical and so far reaching in its effects upon future road improvement. If every change in a country road brings a new liability in damages, then the road improvements so vigorously pressed at this time must receive a serious set back. But the powers and duties of the old township remain “except where the new law expressly enacts otherwise.” We find no express provision, not even an intimation, that the act contemplates any such radical changes in liability upon the part of a township of the first class. Under the act of 1899 the care of the roads is intrusted to the township commissioners, and their duties are identical with those imposed under the general road law of 1836. Section 9 of the act of 1899, provides, “It shall be the duty of the board of township commissioners to cause all public highways within the township now or hereafter laid out by lawful authority to be effectually opened and constantly kept in repair at all seasons, and clear of all impediments to easy and convenient passing and traveling.” Section 6 of the general road law of June 13, 1836, uses the same words. Under this provision townships have changed the grades of highways upon a demand for easy and convenient passing and traveling and without liability in damages: Shoe v. Nether Providence Township, 3 Pa. Superior Ct. 137. It would seem that the exercise of the same power under like authority by townships of the first class should not impose any greater liability.
    It is true that townships of the first class are invested with some powers that are not possessed by townships of the second class, but so far as the public roads are concerned, the duty of opening, grading and caring for them is practically unchanged by the act classifying the townships. Where an electric railway attempts to occupy the public roads in a township of the first class, it must have the assent of an abutting owner. The commissioners of the township have no greater powers in giving the privilege than supervisors have in townships of the second class. The highways are still treated as ordinary township roads and are not to be considered as borough streets:. Dempster v. United Traction Company, 205 Pa. 70.
    The township commissioners have no authority to lay out a street, nor do they have any veto power should a citizen begin proceedings in the court to lay out a street. Under the Act of June 7, 1901, P. L. 510, they may ordain a street, but only upon the application of the owner through whose land such street may pass, and anyone interested may bring the proceeding into the court, whereupon it is governed by the general road laws. The commissioners have the power to occupy land outside of the public roads where it is necessary to locate sewers upon private property. The township must make compensation. The township also has certain police powers and may pass ordinances to enforce them. It can compel curbing and paving. It is claimed that these powers show that townships of the first class are municipal corporations invested with the privilege of taking private property for public use and that, therefore, they must make just compensation for property taken, injured or destroyed.
    These powers to use private property are so limited that we doubt their sufficiency to bring townships of the'first class within the provisions of article XVI, sec. 8 of the constitution of 1874. They are no more than police powers to safeguard the people of the township. The taking of land for sewers is necessary to protect the people in their health. Townships of the second class have their health boards, invested with large powers where the protection of the people from infectious and contagious diseases is involved. Townships of the second class may enter upon private lands to cut ditches to drain the public roads and they may take materials from such lands to build and repair the public roads. They may even change the course of a stream to protect their roads: Warfel v. Cochran, 34 Pa. 381.
    But if we concede that townships of the first class fall within the constitutional class of municipal corporations invested with the right of eminent domain the question may still arise, did the township of Cheltenham take or injure any property in cutting down the hill on Franklin avenue? Was the consequential damage done by any exercise of the right of eminent domain on the part of the township? In Wagner v. Salzburg Township, 132 Pa. 636,' the court said: “The township does not take the land for a highway. It does not lay out the road. The law imposes on it the duty of opening the road and keeping it in repair, for the benefit of the traveling public, but the duties of the township do not begin until the road has been laid out by proceedings in the court of quarter sessions. The right to sue cannot be rested, therefore, on the constitution.” This was said in an action wherein the claimant endeavored to recover damages for the cutting down of a public highway — for a change of grade. But it is contended that the township is liable although it has no right of eminent domain so far as the public roads are concerned and is not invested with the right to take land for highways. We do not think that the cases cited support this contention. In Chester County v. Brower, 117 Pa. 647, the court said: “It is equally clear that counties do possess the power to take private property to a limited extent in the matter of opening roads and constructing bridges.” That is, the county was liable for the consequential injury because it exercised a talcing in a limited extent when the land was taken for the construction of a bridge, and when the county in fact erected the bridge. So in Hendrick’s Appeal, 103 Pa. 358, it was held that the private lands were appropriated by the borough of Norristown for the use of her streets under the special Act of March 26, 1853, P. L. 228. It was also shown that under a later act no street could be laid out, opened or widened in the borough without the municipal consent was first had. The borough 'had a veto power. In Franklin avenue the township had no part whatever in taking private lands or in laying out the street or highway. The street was laid out as a county road.
    We conclude that the township of Cheltenham in 1904 did no more than grade down •& hill for convenient and easy passing and traveling. If this was a more effectual opening and repair of the highway, or if it was in fact a grading of the road is immaterial, if we are correct, for even if it was a change of grade the township is not liable for any consequential damages the plaintiff'may have sustained by such change of grade.
    If is argued that our conclusion works out a great hardship to the claimant, but this same hardship arises when a township of the second class cuts down a road to make the highway more convenient for the increased needs of travel, and yet there is no remedy in that case for the injured landowner, except so far as his damages for this class of injury was assessed at the laying out of the road.
    It may also be said that the'owner should have considered the situation as he found it and erected his house to meet the improvement that was sure to follow.
    The motion for a new trial is refused, and for the reasons given we now order and direct that judgment be entered for the defendant non obstante veredicto upon the whole record.
    
      Error assigned was in entering judgment for defendant non obstante veredicto.
    
      February 28, 1908:
    
      Louis M. Childs, with him Joseph S. Kraiz, for appellant.—
    The appellant submits that this case comes within the scope of the decision of the Supreme Court in Chester County v., Brower, 117 Pa. 647.
    
      Montgomery Evans, with him John M. Dettra, for appellee,
    cited: Warfel v. Cochran, 34 Pa. 381; Wagner v. Salzburg Twp., 132 Pa. 636; Winner v. Graner, 173 Pa. 43; Shoe v. Nether Providence Twp., 3 Pa. Superior Ct. 137; Snively v. Washington Twp., 218 Pa. 249.
   Opinion bt

Beaver, J.,

The appellant states the question here involved: “Is a township of the first class liable for damages to an abutting property occasioned by the change of grade of an existing highway within the limits of the township?”

Upon the trial of the case in the court below, the trial judge submitted certain questions of fact to the jury, the verdict being for the plaintiff. Upon a motion for a new trial or for judgment non obstante veredicto, the court entered judgment upon the whole record for the defendant n. o. v. The entry of this judgment constitutes the error assigned.

By the Act of April 28, 1899, P. L. 104, providing “ for the classification of the townships of the commonwealth, with respect to their population, into two classes, and to prescribe the form of government for .townships of each class,” it is enacted in section 3: “Except so far as modified by the provisions of this act, all existing laws relating to townships shall continue in force until changed, modified or repealed, as to either class of townships, by legislation relating expressly thereto.”

We find nothing in the act which changes the liability of a township of the first class as to the change of grade of an existing highway within the limits of a township from that which existed under the Act of June 13, 1836, P. L. 551, and the several supplements thereto.

The action here was trespass to recover damages for the change of grade complained of. There was no liability for damages under the general road laws prior to the adoption of the constitution of 1873. Since that time, it has been expressly decided under Wagner v. Salzburg Twp., 132 Pa. 636, that “Neither the commonwealth nor any municipality through whose territory a public road passes is liable to landowners for damages sustained by them through the exercise of the state’s power of eminent domain in the laying out and opening of the road, until made so by legal enactment: Feree v. Meily, 3 Yeates, 153; and, when a statute gives to landowners a specific remedy for the recovery of such damages, that remedy must be pursued.”

“ A township charged by a local statute with the payment of damages arising from the opening of a public road, under order of the court of quarter sessions, is not a municipal corporation invested with the power of eminent domain within the purview of section 8, article 16 of the constitution, and it incurs no liability to an action of trespass by a landowner for the recovery of such damages.”

This view is later held in Shoe v. Nether Providence Twp., 3 Pa. Superior Ct. 137, and since the trial of this case in Snively v. Washington Twp., 218 Pa. 249.

The question is fully and forcibly argued in the opinion of the court below, upon which the judgment for the defendant, n. o. v., is based, which fully vindicates the conclusion at which the trial judge arrived. We concur with the views therein stated. No useful purpose will be served by a restatement of the arguments therein contained, nor a further citation of the authorities upon which they rest.

Upon the case as presented, we are clearly of the opinion that the township was not liable iti trespass, and that is the only question which it is necessary for us to decide at this time.

Judgment affirmed.'  