City of Pittsburgh v. Knowlson

92 Pa. 116 | Pa. | 1879

Mr. Justice Gordon

delivered the opinion of the court, November 24th 1879.

This is a scire facias upon a municipal claim for grading and paving on Locust street, in the city of Pittsburgh, filed in the proper lien docket, March 28th 1877, which was, as the jury found, more than six months after the completion by the contractor, of the work upon the street above named, but Avithin that period, counting from the date of the approval and acceptance of that work by the city engineer. Two points, the only ones we need mention, as those embrace all that is material in the case, were made by" the counsel for the city; they were, 1. “ That the provisions of the Act of Assembly, with reference to the filing of municipal liens within six months from the .completion of the work, is directory only, and Avill not, as betAveen the lot-owner and the city, defeat the right of the city to file such lien.”

2. “ That the time from which the six months run is the ‘completion of said improvements,’ and under the contract in evidence, and the Acts of Assembly and ordinance, the said improvement is not completed until approved by the city engineer.” Both these points were refused; the court holding that the provision of the act, in the first point mentioned, was not merely directory but material, and that a want of compliance with it would defeat the lien; and that the six months must be computed from the time when the contractor finished his work, and not from the time of its approval by the engineer.

In this, we think, the court was right. If we examine the act we shall find, “ that the lien authorized by this act shall be filed in the District Court of said county, in the same manner as mechanics liens are filed;” and further, that “the assessments authorized by this act shall be liens upon the properties assessed, from the commencement of the improvements for which they were made, and shall, if filed within six months after the completion of said improvements, continue liens for five years, and be revived by scire facias as other liens.”

Now it will be observed that there is here not merely a direction, as in the act considered in the case of Magee v. The Commonwealth, 10 Wright 358, to file the assessments -within a given time in order that they may become a lien, but the provision is that they shall be a lien from the commencement of the improvement, and shall, “ if filed within six months after the completion of said, improvements, continue liens for five years.” Here the lien is made to depend for its existence upon the compliance with the condition, for if not, it follows that the lien, without the filing of the assessments, continues for five years. For, of course, if this condition is not obligatory but directory then there would be a sufficient compliance if there were a filing of the assessments at any time within the last named period. It would, however, be an amazing stretch of the imagination to suppose the legislature intended a matter so contrary to all reason and precedent as the burthening of property by secret and uncertain liens for the period of five years. The proposition so to construe the act becomes all the more singular when we consider that the framer of the statute had the mechanics’ lien law, not only for his model, but, so far as applicable, made it part of his enactment. There is, therefore, nothing left for us but the conclusion, that as the six months limitation in the mechanics’ lien law is material, so it is in the act under consideration.

Then as to the second point: when may the improvement be said to be completed ? Here the statute may well be allowed to interpret itself. The lien is to commence with the commencement of the improvement. Now commencement is just as ambiguous a term as completion and not any less so; we presume, however, no one would pretend that the lien would reach back to the promulgation of the ordinance for the street paving, the approval of the contract or to anything preliminary to the actual beginning Of the work, for nothing is more obvious than if the actual work never begins neither does the lien. Not less obvious is it that the completion of the improvement means the finishing of the work on the ground, for the city engineer is not called upon to finish the work, but to approve and accept that which has already been finisued by the contractor, hence his approval pre-supposes a work previously finished.

This question has been already and in point decided by the case of Kaiser v. Weise, 4 Norris 366. In this case, Kaiser the vendee of Weise had executed a mortgage for the purchase-money of the premises conveyed to him. On a scire facias brought to enforce the mortgage, he proposed to set off the payment of a precedent municipal lien originating in a claim for the grading of Hazlewood avenue. This was resisted on the ground that his payment was that of a mere volunteer, having been made one day after the six months had expired from the completion of the work. The court sustained the objection, and in this court its ruling was affirmed. Yet there, as here, it was contended that as the limitation, counting from the time of the approval and acceptance of the work, had not expired, the lien was in force. This case then is directly in point, and settles any doubt that might otherwise arise in the determination of the contention in hand.

Complaint is also made of a part of the charge of the court, which is as follows : “ But repairs made necessary by heavy rains or a change of a few feet of curbing, after the contractor had quit work, and after the acceptance of the work by the street committee, would not have the effect of extending the time of the actual completion, unless the curbing thus changed had been improperly placed through the negligence of the contractor.”

We think this instruction quite as favorable to the plaintiff as it ought to have been. The limitation runs from the time when the work is finished and cannot be extended by repairs or alterations made afterwards. Eor these the property owner is not assessed but only for original work, and it is hence obvious that they can, for no purpose, be tacked to that work.

Judgment affirmed.

For reasons above stated judgments of affirmance are to be entered in the following named cases:

City of Pittsburgh v. Robert Watson’s Estate.

City of Pittsburgh v. Robert Coward.

City of Pittsburgh v. George Moffatt.