32 Pa. Super. 641 | Pa. Super. Ct. | 1907
Opinion by
The questions presented by this record arise out of the trial, in the court below, of an issue which involved the validity of a municipal lien for paving. The city of Chester, in 1889, paved the roadway of Edgmont avenue, from Twelfth street to Fifteenth street, with vitrified brick, and filed a lien against the property of the defendant which abutted upon that part of the street. The defendant averred that his property was not subject to this lien for the reason that the street in question had been permanently improved by the city, as a city street, and had been by the city changed from an ordinary road into a city street and macadamized from curb to curb, which work was done under municipal authority in the years 1869 and 1870. There was a dispute, under the evidence, as to what action the municipal authorities- had taken and what work had actually been done upon the street by the municipality, at the time of the alleged previous paving. The learned judge of the court below submitted the questions of fact to the jury, under instructions which were briefly and fairly summarized in the concluding sentences of his charge. “ If you find from all the evidence in this case that the City of Chester, in 1868, did intend to change the character of this street into a permanent improvement and did do it, a permanent city street, then your verdict must be for the defendant. If, on the other hand, you find from the evidence, from all the evidence, that it was only intended to be a repair, then the city is entitled
The evidence produced at the trial, by the defendant, would have warranted a finding that the part of the street in question had been graded in the years 1868 and 1869, that for the entire length of the street the sidewalks had been paved and the curb set in the latter year, and that, in the years 1869 and 1870, the roadway had been macadamized, from curb to curb, in such a manner as to change the clay road into a good, reasonably smooth, and substantial artificial highway. The city produced witnesses whose testimony tended to contradict this evidence. The jury found in favor of the defendant upon this question of fact. We must therefore accept it as settled that, so far as the work done upon the ground was concerned, the paving of the street, in 1869 and 1870, was of such a character as to constitute an original paving of the street; and if done under municipal authority, for the purpose of changing the old road into a city street, it would relieve the owners of abutting property from liability for assessment for the cost of a subsequent paving: Harrisburg v. Segelbaum, 151 Pa. 172; Philadelphia v. Ehret, 153 Pa. 1.
The defendant was, however, bound not only to establish by evidence the previous change in the character of the street, but to show that that change had resulted from the lawful exercise of the municipal authority, for the purpose and with the intent of changing the road into a street. The municipality is bound to'keep in proper repair all its highways,-whether they be roads or streets, and if the municipal intent merely be to repair the road as an ordinary highway, a mere surfacing of the road, however.carefully or expensively done, will not be apav
The councils of a city have the sole right to designate what streets shall be paved and the character of the paving: Philadelphia v. Dibeler, 147 Pa. 261; Philadelphia v. Hill, 166 Pa.
The first action taken by the council which related to Edgmont avenue was in this resolution: “ August 8, 1868. Resolved, That the grading of Edgmont avenue from the railroad to the city line be awarded to James Dougherty at his proposal for doing the same, he giving the requisite security for the performance of his contract and that the street committee be instructed to proceed immediately to repair said avenue after the grading is completed.” Had that been the sum total of the action of the city council, it would not of itself have been sufficient evidence of a municipal intention to change the character of the street. The street committee would have been authorized to repair the road, as a road, after the grading was completed; that was the only power delegated by the original resolution. The resolution above quoted was not, however, Jhe only action of the city council, material to the question, of which competent evidence was presented at the trial. The city council, on September 7,1868, enacted the following resolutions : “ Resolved, That the street committee be directed to procure sufficient stone to macadamize Edgmont avenue from the railroad to the city line. Resolved, That the street committee be required to proceed forthwith, and that they procure sufficient force to finish the same without delay. That the expense of the same be limited to one dollar per square yard after grading.” On May 10,1869, the city council enacted a resolution requiring all property holders on Edgmont avenue to curb and pave the sidewalks in front of their respective properties within thirty days. The street committee, on June 7, 1869, reported that the grading of Edgmont avenue was finished and
While it is true that municipal action cannot be assumed, but must be proved, the decision hereinbefore referred to clearly establish that it is not necessary to prove the municipal intention by the production of a formal ordinance declaring the purpose to change the character of the street. There was in this case sufficient competent evidence that the macadamizing of the street had been done under the express authority and direction of the city council, and the case was properly submitted to the jury. The subsequent action of the court, in entering judgment in favor of the plaintiff, notwithstanding the verdict, was erroneous.
The judgment is reversed and judgment is now entered, on the verdict, in favor of the defendant.