66 Pa. Super. 589 | Pa. Super. Ct. | 1917
Opinion by
“The first paving, which exempts abutting property owners from any liability for any subsequent improvement is one that is put down originally, or adopted or acquiesced in subsequently by the municipal authority for the purpose and with the intent of changing an ordinary road into a street. Two elements are necessary to evidence this fact: the character of the construction and the intention of the municipality to convert a common road into a permanently improved street. The controlling consideration, however, is affirmative municipal intention.......Adoption or acquiescence, as showing municipal intention,- must be limited and confined to acts which deal with the highway as an improved street, and consists of such acts which recognize the construction employed and the results obtained as being sufficient to stamp upon the particular highway the fact of a permanently improved street as such term is usually known”: Pottsville v. Jones, 63 Pa. Superior Ct. 180-186.
We do not think the evidence was adequate to show an intention to convert Front street, in the City of Easton, into a permanently improved street. This street was one of the original streets of the borough. It lies in a closely built-up portion of the city, incorporated as. such in 1887, and from that time houses have been built along the street close together. Prior to the work now claimed as a permanent improvement, it was graded, curbed and guttered with sidewalks under municipal authority and direction. The macadamizing now claimed
■ The court below, in a part of its charge, seventh assignment, seemed to regard the report of the engineer as being enough. This was error. We learn from the argument that there are a number of cases depending on the result of this appeal. We do not feel, when there are other cases in litigation, which embrace the same subject-matter, that the appellant Should be estopped from raising the question of the sufficiency of the evidence in this appeal, though it was through his objection that such evidence was not admitted. But that the appellant may not profit by his groundless objection, we will direct that the seventh assignment of error be sustained, the judgment reversed, a venire facias de novo awarded, and the costs of this appeal to be paid by the appellant,