151 Pa. 172 | Pa. | 1892
Opinion by
For reasons satisfactory to the court, the judgment, to be entered in this case, was not finally agreed upon until the close of our last regular session in the eastern district.
While the questions raised in the court below and here are quite numerous, the case clearly hinges upon a few undisputed
In the fall of 1887, that portion of Market street, in the city of Harrisburg, between Pennsylvania Railroad and Front street was paved with sheet asphalt from curb to curb. The work was done under the direction of the city councils and the cost thereof assessed on the abutting properties according to the foot-front rule. The city then proceeded to enforce payment of the assessments, but on appeal to this court, the act of May 24, 1887, P. L. 204, under which said paving was done, was declared unconstitutional. The act of May 23, 1889, P. L. 272, was afterwards passed ; and, under an ordinance of councils, a reassessment of the cost of said paving was duly made according to the provisions of that act. The defendant, one of the owners of property abutting on the paved portion of said street, having refused to pay the re-assessment against his property, this suit was brought for the purpose of collecting the same.
The defendant’s principal contention was that the asphalt pavement, put down as aforesaid in 1887, was in fact a repavement, because that portion of Market street, between Pennsylvania railroad and Front street, on which said asphalt pavement was laid, was improved in 1832 by constructing thereon a macadamized pavement, and by repaving it, in same manner, about sixteen years thereafter; that in the meantime said macadamized pavement was maintained by the city authorities, kept in repair and paid for by the city, and from time to time, as it was needed, money was borrowed to make said pavement and keep the street in repair.
According to the undisputed evidence, the foregoing are substantially the facts, in relation to the improvement of said street, prior to the fall of 1887, and they were virtually accepted as true.
When the evidence referred to was offered, it was objected to for reasons recited in the first specifiation of error: 1. Because the offer is not to show that the work was done at the expense of abutting property owners, or at the expense of properties benefited thereby. 2d. That at the time stated in
On the other hand, the plaintiff’s contention was that said macadamizing, etc., was in no sense paving within the meaning of our acts of assembly relating to improvement of streets; but, whether it was or not, the property abutting thereon is, in the circumstances of the case, assessable for the cost of the asphalt pavement laid in 1887.
In view of the undisputed facts, as to the manner in which the street was improved and maintained for nearly fifty years, the learned judge, treating the question as one of law for the court and not of fact for the jury, held that said improvement of the street, by macadamizing, etc., as above stated, was a paving within the meaning of the law, and virtually instructed the jury accordingly, by declining to affirm plaintiff’s second point, for charge, recited in the third specification, viz.: “ The macadamizing of a street in a city is not a paving under the laws of this commonwealth.” In this we think he was clearly right, at least so far as the plaintiff’s proposition is applicable to the facts of this case. But, as explained in his answer to defendant’s first point, he did not mean to say that the paving done in the fall of 1887 and for the cost of which the assessment was made, “ was a repaving, in the strict sense of the term, but .... that the work was such that, under all the facts in this ease, a recovery could not be had against the defendant.”
In article vn, section 11 of the act of May 24, 1887, P. L.
These and other acts of assembly, to which reference might be made, clearly indicate that, in the legislative mind, macadamizing is regarded as a species of paving. The latter word is more general than the former. As popularly understood, a macadamized street is a paved street, but every paved street is not necessarily a macadamized street. According to Webster, pave means “ to lay or cover with bricks or stone, so as to make a level or convenient surface for carriage or foot passengers; to floor with brick or other solid material.” The same author defines macadamize, “ to cover, as a road, way or path, with small broken stones, so as to form a smooth laid surface.”
“A pavement,” as was said in Burnham v. Chicago, 24 Illinois 496, “ is not limited to uniformly arranged masses of solid materials, as blocks of wood or stone, but it may be as well formed of pebbles or gravel or other hard substances, which will make a compact and even hard way or floor.” In Huidekoper v. Meadville, 83 Pa. 158, it was said by the learned president of the court below that “paving the gutters with cobble stone, and cartway with broken stone (macadamizing) is a paving within the meaning of the act of assembly.”
“The word pave, includes all the usual means to cover streets with stone or brick, so as to make a convenient surface for travel. . . . Authority in a city charter, to pave the streets of the city, confers power to macadamize them: ” Warren v. Henly, 31 Iowa, 31.
Laird v. Greensburg, 138 Pa. 533, was a scire facias sur municipal lien for curbing and paving a borough street under the act of April 23, 1889, P. L. 44. An affidavit of defence was interposed, averring that, many years before the last im
But, after all, so far as the defence, relied on in this ease, is concerned, the controlling consideration is not so much whether the prior improvement of Market street, by macadamizing, etc., as above stated, was, in the strict sense of the word, a paving thereof, as whether, by said improvement,the street was changed from an ordinary clay road into a good, reasonably smooth and substantial' artificial highway, practically equivalent to an ordinarily well improved street, paved with cobble stone or other materials then used for paving. The undisputed facts prove conclusively that it was. In view of those facts, it cannot be doubted that, for strength, durability and all practical purposes, it was superior to many improved streets paved, for the first time within the last decade or two, with wooden blocks, asphalt (so-called) and other materials for which fancy prices have been charged and collected from abutting property owners.
The further and main contention of plaintiff, however, is that, notwithstanding the prior improvement of the street may be regarded as a paving within the meaning of the law, still the abutting property is assessable for the cost of the asphalt paving, because the cost of the macadamizing was not charged against the abutting property of paid by the owners thereof. If that had been done, it is practically conceded that, under the authority of Hammett v. Philadelphia, 65 Pa. 146, and that special line of cases, the plaintiff would not be entitled to recover.
At first blush, there is apparent plausibility in the position, that the expense of one paving,at least, should, at some time or other, be charged against and paid by owners of the abut
The force of this language cannot be fully appreciated without considering the preceding portions of the opinion, wherein the constitutional authority of the legislature to confer upon municipal corporations the power of assessing the cost of local improvements, upon the properties specially benefited thereby, is discussed, the history of its exercise outlined, its necessary limitations, and the dangers of its abuse, etc., pointed out. In that connection it is said: “ Whenever a local assessment upon an individual is not grounded upon and measured by the extent of his particular benefit, it is pro tanto, a taking of his
The principle, recognized and so strongly emphasized in Hammett v. Philadelphia, has been adhered to ever since. ' It was not our intention either to depart from or to qualify it in Williamsport v. Beck, or in any other ease; nor, are we convinced that we have done so. To hold, as we have been urged to do, in this case, that the owners of property abutting on Market street are liable for the cost of the asphalt paving, merely because the expense of the original paving or macadamizing in 1832 was not paid by the then owners, but by the public of which they were part, would be a sad departure from the principle of all our cases. It was competent for the legislature, prior to 1832 or even since, perhaps, to have provided that the special local benefit to said property, resulting from the first macadamizing of the street, should, to an extent not exceeding such special benefit, be assessed against the same and paid by the owners thereof, but no such provision was made. The then owners presumably enjoyed the special benefit, resulting from the improvement, in the shape of enhanced value of their respective properties, and all that they paid, as an equivalent therefor, was their -respective shares of the public taxes, part of which was doubtless used in paying for that and other similar improvements. They were the persons who enjoyed the special local benefit, and, when they disposed of their respective properties, they doubtless realized the same in the shape of enhanced value thereof. It was then and not since, that the particular benefits to the locality, derived from the improvement of the street, were received and enjoyed. No such special local benefit could or did accrue, by reason of subsequent improvements, to those who afterwards became owners of the respective properties. What justice then, would there be in taxing those who owned the property in 1887, for benefits which neither they nor their property received—benefits which only those who owned the property nearly sixty years ago, when it was first macadamized, enjoyed and received ? Assessment for special local benefits, if exercised at all, must be exercised at or near the time the benefits accrue. No such special local benefit did or could accrue to the then abutting owners
It is not necessary to notice other authorities cited and relied on by counsel. Enough has been said to indicate our reasons for affirming the judgment of the common pleas.
The first specification relates to the offer of evidence, therein referred to, to prove that Market street was improved by macadamizing in 1832 and again in 1848, etc. We think it was both relevant and competent and hence the specification is not sustained.
The second to eleventh specifications, inclusive, complain of the learned judge’s answers to plaintiff’s points for charge, recited therein. We discover no error in either of said answers; and hence the specifications are not sustained. Nor do we think there is any error in the instructions complained of in the twelfth specification.
The remaining specifications—13th to 19th both inclusive—
Judgment affirmed.
[See also the next case.]