Burgess & Town Council of Norristown v. Fornance, 1 Pa. Super. 129

1 Pa. Super. 129 | Pa. Super. Ct. | 1896

Opinion by

Willard, J.,

In the year 1892 the authorities of the borough of Norristown in order to perfect one of its principal streets, known as Main street, and render it in keeping with the advance of the borough in other respects (under the provisions of. the act of assembly in such cases made and provided), directed the curbing of said street on both sides thereof. The property owners interested complied with the reasonable terms of the direction with the exception of the appellant. After due notice and refusal on her part, the authorities of Norristown caused the street in front of her property to be suitably curbed, and filed a lien for the collection of the cost of the curbing together with the statutory penalty against so much of her property as was affected and benefited thereby. Upon this lien a writ of scire facias was duly issued and on September 9, 1893, the appellant plead to the scire facias and an issue was made up. Under the issue thus raised, after two trials, on December 11, 1894, a verdict was rendered against appellant for the costs of the curbing and the penalty.

In the court below the appellant contended that her land against which the lien was filed was .farm land or suburban property and not subject to a municipal lien for the costs of curbing.

Her property in question is a part of a large tract of land containing about eighty (80) acres, further subdivided into two tracts of forty (40) acres each by a public street running through the center thereof. The portion against which the lien is filed is situated on the northerly side of Main street between Buttonwood and Hamilton streets and extends back to Airy street. It is 360^ feet in front on Main street by 265 feet deep, bounded on the southwest by Main street, on the northwest by Hamilton street, on the northeast by Airy street, on the southeast by Buttonwood street. Main street and Buttonwood street are open streets; Hamilton street and Airy street were not opened at the time the curbing was done.

Up to Buttonwood street, Main street is improved on both sides. On the part of appellant Buttonwood street is claimed as the dividing line between urban and rural property, but from the testimony it appears that the tide of public improvement has not stopped at that point but has swept on westward along Main street, so that on the south side thereof opposite the property in question the land is laid out in town lots curbed and paved, and several buildings are there erected.

On the trial in the court below there was evidence that the land was ripe for building purposes, that its retention for farming purposes was a barrier to the advance of necessary improvements in opening, and perfecting the plan of streets, and prevented the erection of buildings in the locality for the want of suitable sites. There was also evidence on the other side that the property was only used for farming purposes, always had been, and appellant did not contemplate using it for any other purpose.

Under the surroundings of the property and the testimony offered on both sides, the learned judge in the court below, in a fair and impartial charge, submitted the question to the jury whether the land in question was urban or rural, telling them that if they found it to be rural their verdict should be for the defendant.

Under this instruction the jury found a verdict for the plaintiff and we can find no reason for disturbing the verdict for any error in the charge: South Chester v. Garland, 162 Pa. 91; McKeesport v. Soles, 165 Pa. 628.

The first six specifications of error are therefore overruled and we here remark that the first specification of error is not a proper assignment of error under the rules of this court, as we are not informed in the assignment what evidence was improperly admitted.

So far as concerns the claim filed against property fronting on Hamilton street, the learned judge in the court below excluded from the consideration of the jury fifteen feet and nine inches of the curb thus located, but directed the jury that they could consider the entire line in front of plaintiff’s property fronting on Main street. This we consider a fair disposition of the case, as the curb fronting on Main street was in front of plaintiff’s land and benefited the same whether Hamilton street-was ever opened or not. The seventh (7) and eighth (8) assignments of error are therefore overruled.

It further appears that on the line of this curb a small stream crossed Main street which was bridged over, and under the bridge there was no curb line, from the fact that the putting in of a curb at that point would prevent the free flow of the water of the stream. This, it is claimed by the appellant, was a division of the property into two parts, and necessitated the filing of a separate lien against each part, and was properly disposed of by the learned judge in the following language: “ Apparently the lien was filed against a lot which was not curbed along its entire front, but an examination discloses that this objection was without merit.” For a distance of four (4) or five (5) feet a water inlet interfered with the curb line, and for that distance no curb was set because there was no foundation .upon which the stone could rest. We do not think this fact made it necessary to file two liens so as to exclude the strip of ground four (4) or five (5) feet wide. The ninth (9) and tenth (10) assignments of error are therefore overruled.

On an examination of the lien filed we are of the opinion that it was a sufficient compliance with the statute, and if the appellant considered it defective in not stating the nature and value of the work and materials as distinct items, she should have moved to strike off the lien. She however plead to the scire facias and went to trial without objection to the form of the lien. She is too late to interpose this objection now: Howell v. Phila., 38 Pa. 471; Lybrandt v. Heberly, 36 Pa. 347; Lee v. Burk, 66 Pa. 336; St. Clair Coal Co. v. Martz, 75 Pa. 384.

The eleventh (11), twelfth (12) and thirteenth (13) assignments of error are therefore overruled.

The appellant’s seventh (7) point in the court below called upon the court to direct a verdict for the defendant. This was refused, and we think with great propriety, as it would have been error to affirm the point. While we duly appreciate the efforts of the appellant to preserve her ancestral acres from the touch and burden of improvements necessary to keep pace with the wants of the municipality of the borough of Norristown, we are decidedly of the opinion that sentiment must give way to facts and beneficial improvements must not be retarded to gratify the peculiar view of individuals. In this controversy between the appellant and the authorities of Norristown the learned judge performed only his duty in sending the question to the jury; their verdict established the land described in the writ as urban property and subject to the lien filed for the municipal improvement, and we do not propose to disturb the verdict. The fourteenth (14) assignment of error is therefore overruled.

The fifteenth (15) assignment we are not called upon to consider for the reason that we are not informed therein what amendment was allowed to the lien in the court below, and after a careful investigation of the whole record we can find no such amendment. The assignment is therefore overruled.

Judgment affirmed.