67 Pa. Super. 239 | Pa. Super. Ct. | 1917
Opinion by
This is an action to recover for the construction of a sidewalk or footwalk in front of the property of the defendant, which she, after notice, had failed to construct. The defendant raised every possible objection to the payment of this claim, contending, among other things, that the street upon which the walk was laid was not a public highway. The trial resulted in a verdict and judgment in favor of the plaintiff, from which we have this appeal.
There was nothing in the evidence, at the trial, from which a jury should have been permitted to infer that the ancient road which existed prior to the incorporation of the borough had been laid out by public authority, nor that it had been formally dedicated to public use by the laying out of a plan and the sale of lots by the owners of the property over which it was located, nor that the council of the borough had ever taken any legal action to widen or straighten the old road. The evidence
The contention of the appellant that she cannot be required to pay for the cost of laying this sidewalk, for thé reason that her property is farm land, capable of being used only as a pasture, is not well founded. The question whether this was such farm land as not to be properly eluded within the borough limits is one which ought have been settled at the time of the incorporation of the borough. The predecessors in title of this defendant per-' mitted this land to be included within the borough limits, and the land is subject to the jurisdiction conferred by the statutes upon the authorities of the borough. Assessments for the construction and maintenance óf sidewalks involve an exercise of the police power, not of the taxing power;' it is, therefore, immaterial whether the property is rural or urban and the municipality is not required to establish that the property of the defendant was peculiarly benefited by the improvement; Philadelphia v. Weaver, 14 Pa. Superior Ct. 293; Pittsburgh v. Biggert, 23 Pa. Superior Ct. 541, and cases there cited. The statutes which confer upon boroughs jurisdiction to require property owners to construct, maintain and repair sidewalks have been reviewed and commented upon in Smith v. Kingston Borough, 120 Pa. 357; Steelton Borough v. Booser, 162 Pa. 630; Angle v. Stroudsburg Borough, 29 Pa. Superior Ot. 601, and it is not necessary that we discuss at length the provisions of
We come now to the question whether the borough, under, the facts of this case, properly exercised the power which it possessed. The evidence clearly established that this was not a case of original construction of a sidewalk upon a street. The defendant was cleárly correct when she said in her affidavit of defense “that the Borough of Canton did repair or reconstruct two' separate pieces of side- or footwalk along the eastern -portion of Sullivan street as set forth in the plaintiff’s statement, but states that said walk so alleged to have been by the borough constructed was simply a repair or reconstruction of the said side- or footwalk which the Borough of Canton had previously constructed and was already maintaining.” The sidewalk was laid upon the exact location of a sidewalk which had been continuously maintained for a .period of over thirty years. This being the case it is not necessary to discuss the contention of the defendant that the ordinance of September 17, 1908, referring to this
The defendant contends that the notice which she received was insufficient, that it was impossible for her to have the sidewalk reconstructed within five days. The statutes require notice, but they do not fix the period of notice: Angle v. Stroudsburg Borough, supra; Smith v. Kingston Borough, 120 Pa. 357. The general regulations
The contention of the appellant that the borough ought to have first established a grade at which the side
The judgment is affirmed.