157 A. 694 | Pa. Super. Ct. | 1931
Argued October 7, 1931. These three appeals were taken by Charles P. Brady, the owner of a tract of land in the 35th Ward of the City of Philadelphia, from the judgments entered by the court below upon verdicts rendered against him in scire facias proceedings to enforce municipal liens for the construction, under the authority of the city, of a main sewer in streets opened through his land.
As the issues were identical, the cases were tried, and the appeals argued, together; they may therefore be considered as a single case and disposed of in one opinion. Appellant submitted a point for binding instructions but did not move for judgment n.o.v.; his contention, defined in eleven assignments, is that a new trial should be directed because of trial errors. The assignments need not be considered seriatim; they are based upon alleged errors in the charge, in disposing of his points, and particularly, in excluding certain offers of evidence. The issue under the pleadings, and as submitted to the jury, was whether the property in question was rural or urban, as only in the latter case would it be subject to assessment by the foot front rule for the cost of constructing the sewer.
Throughout the trial it was suggested in behalf of appellant that three classifications of land should be taken into consideration — rural, suburban and built up city property. The trial judge ruled, and we think properly, that for the purposes of this case but two classifications could be considered — rural and urban — and that "if the land is urban land, is city land, the sewer ...... benefits it to the extent of the assessment" and the purpose of the city in constructing it was immaterial. Appellant's complaint with relation to the refusal of points for charge is illustrated by his seventh assignment charging error in refusing a point reading: "If the jury find that defendant's *82 property comprised about 65 acres and consisted of a strip of ground with a frontage of approximately 500 feet on Oxford Avenue and extending back about 4,000 feet with no intersecting streets except these three streets (Montour, Princeton Avenue and Tabor Avenue) extending for one square each in a zigzag manner across the property and that at the time these streets were opened and this sewer built the property was used as a farm property by the tenant under lease from defendant your verdict should be in favor of defendant." It was strongly urged that appellant's property was actually being used as a farm at the time the sewer in question was built, and therefore could not be classified as urban for the purpose of making sewer assessments.
In our opinion the point was correctly refused, since it does not correctly state the law upon the subject. Concededly, if the property was in fact rural it could not be assessed according to the foot front rule. On the other hand, the test to determine whether a property is rural is not whether the plot itself is used for rural or farm purposes, but whether it is rural in view of the neighborhood in which it is located. It is possible that a property may be used as a farm and yet be situated in the center of what is essentially an urban district. To exempt such a property from assessment for sewers and the like is to work an unjust discrimination against neighboring owners and to obstruct the proper course of civic development. Consequently, it has been universally held that the property sought to be charged is not to be considered as an isolated plot of land, but should be classified as rural or urban according to the general character of the neighborhood in which it is situated. The leading case on this subject is that of City of McKeesport v. Soles,
Another error alleged was the exclusion as evidence of appellant's tax receipts and the tax assessment books (offered to be supported by the testimony of the real estate assessor who made up the books), all of which were offered for the purpose of showing that at the time the sewer was built appellant's property (and other property in the immediate neighborhood) was assessed for purposes of taxation "as rural or suburban property, and at the rural or suburban rate," as distinguished from full city rates. This evidence was properly rejected. The jury had ample competent evidence from which to determine whether the property was rural or urban, and the records of the assessor, and his proposed testimony, were inadmissible. It is appellant's contention that these records were made by officials of the city, and should therefore be considered as admissions by it as to the character of the property. This argument has been definitely answered by the Supreme Court in Girard Trust Co., Trustee, v. Philadelphia,
Certain earlier decisions of the Supreme Court cited by appellant cannot be accepted as authority for his proposition. In Lukens v. Philadelphia, 13 W.N.C. 86, the lower court refused to charge that the assessment was conclusive evidence of the character of the property, and this action was affirmed on appeal. The general admissibility of such evidence was not raised or considered. Similarly, in Craig v. City of Philadelphia,
As the record presents no reversible error, we overrule all the assignments.
The judgments are severally affirmed. *89