197 Pa. 467 | Pa. | 1901
Opinion by
This is an appeal from the decree of the court below dismissing plaintiffs’ exceptions to the report of a referee in equity proceedings instituted to enjoin the collection of municipal liens for paving, sustaining defendant’s exceptions on the question of original paving and dismissing the bill without prejudice to the right of plaintiffs to defend on the question whether the claims were filed in time. The assignments of error are inaccurate in asserting that defendant’s exceptions on the question that the claims were filed in time were sustained. The court expressly declined to sustain them. The only objection the plaintiffs are entitled to make is that these exceptions were not dismissed. The referee has stated the facts with great fullness and fairness, and he has attached and reviewed the authorities with learning and ability. His exhaustive statement of the facts and discussion of the law make it unnecessary to consider either in detail. It will be enough to point out wherein he has erred.
By ordinances of March 30,1894 and 1895, Woodland avenue was paved in front of plaintiffs’ respective properties. By supplementary ordinance of December 16, 1896, it was provided that the paving was to be paid for to the contractor out of the general funds of the city, and that the city should file assessment
The bill averred that Woodland avenue was one of the oldest highways in the commonwealth and had often been recognized as a main artery of travel; that the incorporating act of April 19, 1850, authorized the building of a turnpike road thereon in the manner prescribed by the act of January 26,1849, and that said road was built and approved by the commissioners appointed by the governor in accordance with the last mentioned act; that by the act of May 27,1863, and the ordinance of December 8, 1869, the city was authorized to take and did take the turnpike road, paying the company therefor, and that the road laid by that company was adopted and acquiesced in by the city as a well paved city street; that after consolidation, gas pipes were laid along the avenue and by numerous ordinances public gas lamps were erected thereon; that by the ordinance of April 19, 1870, the property owners were directed to grade, curb and pave their sidewalks; that by the ordinance of February 6,1874, the name was changed to Woodland avenue, and that by the ordinance of April 6, 1880, the street was graded to the established grade of the city; that by the ordinance of May 25, 1880, water pipes were laid therein, and by that of November 5, 1883, it was paved between Fiftieth street and Mount Moriah lane, by which said several acts of the city, Woodland avenue had been assimilated to and become a part of the city proper, as a well paved city street, and that plaintiffs could derive no special advantage from any subsequent paving. And finally that the claims for paving were not filed within six months from the time the work was done.
The only ground for equitable interference, namely, the averment in the bill that the city had, by its acts, adopted and acquiesced in the turnpike road as a well paved city street, is found against the plaintiffs by the referee in an irrefutable line of argument. Ón this point the referee says: “ With the original work the city had nothing to do. It was done outside of
Decree affirmed and bill dismissed without prejudice, etc.