94 Pa. Super. 101 | Pa. Super. Ct. | 1928
Argued April 30, 1928.
This is an action of scire facias sur municipal claim for curbing, assessed according to the foot front rule, along a street in front of premises owned by defendants. In 1921 the State of Pennsylvania, the County of Allegheny, the Borough of Cheswick and the Allegheny Valley Street Railway Company entered into a contract to improve and re-surface that portion of the Pittsburgh and Freeport road which lies within the corporate limits of the Borough of Cheswick and is called Pittsburgh Street. By the terms of said agreement, the Borough of Cheswick was required to install the curbs. Defendants were at the time of the improvement of the street in 1921 the owners of land having a frontage of four hundred sixty-seven feet *103
upon the north side of Pittsburgh Street and a depth of about four hundred sixty-five feet and containing about nine and a half acres. This is the property covered by the lien. The sole defense set up in the affidavit of defense was that at the time the work was done the land covered by the lien was farm or rural land and, therefore, was not subject to assessment according to the foot front rule. On the trial the only question in controversy was whether the land should be classed as rural or urban property. This issue of fact was submitted to the jury and a verdict for defendants resulted. The question whether the property charged is urban or rural is one of fact and usually for the jury: Philadelphia v. Neely Neely,
As we understand the second contention made for appellant, it is that the question whether the property was rural or urban should not have been submitted to the jury, because the time to object to the inclusion of rural or farming lands within the corporate limits of a borough is when the borough is incorporated, and there is no evidence that the then owner of the land objected to the inclusion of his land within the *104
corporate limits of the plaintiff borough. Canton Borough v. Williams,
Lastly, it is urged upon us that as defendants did not attack the ordinance authorizing the street improvement, as provided in Chapter 7, Article I, Section 9, of the General Borough Act of 1915, P.L. 312, 393: "Complaint may be made to the next Court of Quarter Sessions, upon entering into recognizance, *106
with sufficient security to prosecute the same with effect, and for the payment of costs, by any person aggrieved in consequence of any ordinance, regulation, or act done or purporting to be done in virtue of this act, and the determination and order of the court thereon shall be conclusive" — and accepted the benefits thereof, they are estopped from interposing in the present suit the defense that their property was rural in character. The contention is without merit. We do not regard the remedy provided by this section of the Act of 1915 as an exclusive legal remedy, or even the appropriate remedy of one who merely intends to raise the question whether its provisions apply to his case. All that is decided in Parkin v. New Kensington Borough,
The assignments of error are overruled and the judgment is affirmed.