72 Pa. Super. 185 | Pa. Super. Ct. | 1919
Opinion by
These two appeals by the defendant are from judgments entered upon verdicts in actions of scire facias upon municipal claims for paving the cartway of Fifty-first street, in the City of Philadelphia. The assessments upon which the claims are founded were made under the foot-front' rule, and there was nothing in the evidence to indicate that the property abutting upon the street was
The cartway of that street had been paved and the cost of that improvement had been assessed upon abutting property, and a part of the sidewalk had also been paved. The street ended in a cul-de-sac at the line of the right-of-way of the railroad. Warrington avenue, a street running almost east and west, also ended in a cul-de-sac at the line of the railroad, and the cartway of that street had also been paved. The city located and opened a new highway, extending along the north side of the railroad, from Fifty-first street to Warrington avenue, thus connecting the two streets named, and this new highway it called Fifty-first street, treating it as an extension of the old street. The plan offered in evidence by the appellant indicates that the line of the new street involved a departure from the course of the old part of Fifty-first street of probably forty degrees, while the angle between the courses of the new street and Warring-ton avenue is somewhat greater but still considerably less than a right angle. The space occupied by the cart-way of the new highway, between the old pavement on Fifty-first street and that on Warrington avenue was not a rectangular parallelogram. The length of the new curb line on the north side of the street was considerably greater than that on its south side, next to the railroad. The city paved the entire new part of the cartway, but did not pave, nor attempt to collect for, the parts of the
The proceeding which had resulted in the location and opening of the street leading from Fifty-first street to Warrington avenue has been referred to as a relocation or change of Fifty-first street. This it was not, no part of Fifty-first street was vacated, a highway was opened from Fifty-first street to Warrington avenue; the city might have called it Warrington avenue or given it some other name, but by whatever name it was called it was a new highway. It took a considerable part of one of the defendant’s lots and cut a corner off the other lot, each of the lots had a frontage upon the new street. The defendant may or may not have recovered his damages for this taking of his property, but that is a, matter with which we have nothing to do. The city offered in evidence the claims filed, which were in all respects regular and prima facie evidence of the averments therein contained: Phila. v. Richards, 124 Pa. 303; Erie City v. Willis, 26 Pa. Superior Ct. 459. The defendant called as a witness the district surveyor of the city who had made the assessment and Ms testimony developed the facts hereinbefore stated as to the peculiar shape of the surface of the cart-
The learned counsel for the appellant argues that the claim filed by the city in this case purporting to charge the property of the defendant for the cost of the work done immediately in front thereof, and that the evidence as to the manner in which the assessment was made varied from the allegations of the claim. The claim filed
The judgment in each of these appeals is affirmed.