84 Pa. Super. 514 | Pa. Super. Ct. | 1924
Argued December 3, 1924. By virtue of section 8 of the Act of May 31, 1911, P.L. 468, (Sproul Act), as amended by Act of April 6, 1921, P.L. 107, the state highway commissioner undertook to change the lines and location of a public road or street in the Borough of Orwigsburg, in the improvement of State Highway Route No. 141; and in doing so diverted the roadway from in front of the house of Charles Fetherholf to some distance in the rear, and appropriated about two acres of his land. On Fetherholf's application, viewers were appointed under the 16th section of the Act of 1911, as amended by the Act of 1921, aforesaid, to determine the damages which he had sustained. They awarded him damages to be paid by the County of Schuylkill. The county filed exceptions denying any liability. The court of quarter sessions dismissed the exceptions and the county took this appeal.
The Sproul Act, which created our present system of state highways, made a clear distinction between county and township roads forming part of state highway routes therein designated, on the one hand, and roads or streets in cities and boroughs, along said routes, on the other. The former were ordered to be taken over by the state highway commissioner, as directed by the act, and pursuant to such action became state highways, under the *517
exclusive authority and jurisdiction of the State Highway Department, thereafter to be constructed, improved and maintained by said department at the expense of the Commonwealth; the latter were not, but remained subject to the authority and jurisdiction of their respective municipal authorities, and except as hereinafter referred to, were to be constructed, improved and maintained as theretofore: Dougherty v. Black,
But the surest evidence of such distinction is found in section 10 of the act, the first clause of which reads: "Anything herein contained, or any apportionment of the State into highway districts, shall not be construed as including or in any manner interfering with the roads, streets, and highways in any of the cities, boroughs or incorporated towns of the Commonwealth."
In order to avoid an unimproved gap between two improved sections of state highway, later provisions of the same section provided that, at his discretion, the state highway commissioner might improve or reconstruct a section of road within a borough, forming part of a state highway route, at the expense of the Commonwealth, subject to three conditions: (1) That the street or road was not already improved or reconstructed by the borough according to or in a manner equal to the standards of the State Highway Department; (2) that the borough councils expressly or impliedly consented to such improvement by the State Highway Department; (3) that the failure to improve such road or street would leave an unimproved gap in a continuous improved state highway.a When these conditions are met, the state highway commissioner at his discretion, may, — (he is not obliged to, as with township and county roads), — take over the road — not generally, (as with *519 township and county roads) — but for improvement; and when the improvement is completed, the cost of maintenance thereafter is not to be borne by the Commonwealth alone, as in the case of the general system of state highways, but divided equally between the Commonwealth and the borough,b if the improvement is not of permanent paving material; and if of brick or other permanent paving material, the cost of repair and maintenance must be borne wholly by the borough. But these provisions in no way detract from or lessen the force of the initial clause of section 10, which forbids any interference by the state highway commissioner with a borough's roads or streets, except as specially permitted by the later provisions of that section. He does not have exclusive authority and jurisdiction over a borough street after it is improved under the act; the powers of a township supervisor do not appertain to him as respects borough roads; he is not the authority to decide whether gas and water pipes, telephone and electric light poles shall be placed in or upon a borough's streets. The act does not clothe him with the same power and authority over borough streets, even along state highway routes, which it gives to him over state highways ordered to be taken over from counties and townships. The borough's police power and control over its streets remain unaffected except as to the authority specially committed to the commissioner of improving and maintaining, at his discretion, (Act of May 18, 1923, supra, p. 254), a section of unimproved road in the borough along a designated state highway route.
But this discretionary right of improvement carries with it no authority to ordain or lay out streets, or to change the location of existing streets, within a borough. By no possible theory of interpretation can such a power be implied. Even the broad and comprehensive powers *520
granted the state highway commissioner over state highways, formerly county or township roads, (see sections 5 and 6), did not include or imply authority to open and lay out new roads or change the lines and location of existing highways. That power was conferred on the state highway commissioner by section 8 of the Sproul Act, and without that express grant of authority, he would have had no power to change the course of a road without application to and the approval of the court of quarter sessions. Even the power granted by section 8, to divert the course of a state highway, does not cause a vacation of the old road: Saeger v. Com.,
Section 16 of the Sproul Act, as amended by Act of April 6, 1921, P.L. 107, (still further amended by Act of May 23, 1923, P.L. 341), provides the method of ascertaining the damages accruing to an abutting landowner from a taking of his land though a change of lines and location by the state highway commissioner, under section 8 aforesaid, and has no other application: State Highway Route No. 72,
But by the express provisions of section 10, the powers granted the state highway commissioner under section 8 aforesaid are not to include any authority on his part to interfere with the roads, streets and highways of boroughs. Under the law the borough council alone has power to ordain and lay out new streets and to change the lines and location of existing streets, except when *521
they form part of a through highway, and then this power is shared concurrently with the court of quarter sessions: McCall v. D., L. W.R. Co.,
As section 16 of the Sproul Act applies only to proceedings taken by the state highway commissioner, pursuant to section 8, and as section 8 is not applicable to boroughs, it follows that it is not the method for assessing damages for land taken in the laying out or changing the location of a borough's roads and streets. For land taken pursuant to action of borough council, the borough alone is responsible: McCall v. D., L. W.R. Co., supra, p. 517; if the proceeding is taken in the quarter sessions, the viewers and the court pass upon the necessity of the change of road as well as the damages, and the county is entitled to be heard on both aspects of the proceeding before being called upon to pay the damages.
On full and careful consideration of the case we are of opinion that the Act of 1911 and its amendments gave the state highway commissioner no power to interfere with the location of streets and roads in the Borough of Orwigsburg, so as to authorize his diversion of the road in question from the front of the appellee's house and the laying out, opening and construction of a new road through his property; and that section 16 in consequence does not furnish the appropriate remedy for the damages he has sustained. As the record shows that the improvement was undertaken with the approval of the borough, which agreed to adopt the lines and grades established by the State Highway Department, it would seem that he has a full and complete remedy against the borough: County of Chester v. Brower,
The order of the court below is reversed at the costs of the appellee.
