41 Pa. Super. 103 | Pa. Super. Ct. | 1909
Opinion by
The city graded, paved and curbed James alley, a distance of one square, from St. Clair street to Mellon street, both of which were improved streets. Viewers were appointed to assess the damages and benefits resulting from this improvement, under the provisions of the Act of May 16, 1891, P. L. 75, as supplemented and amended by later legislation. The viewers filed a report finding the amount of the costs and expenses of the improvement and making assessments, to pay such costs and expenses, upon abutting properties, including that of the appellant. The report made no award of damages and no property was assessed to pay damages. Mrs. Fraser appealed from the report of viewers and demanded a jury trial, in said appeal
That the report of viewers is not generally admissible in evidence, upon the trial of an appeal from that report, is so well settled as to render citation of authority unnecessary; that in fact is conceded by the learned counsel for the appellant. The Act of April 2, 1903, P. L. 124, amending the act of 1891, expressly provides that the report of viewers when confirmed “shall be conclusive as to any assessment made therein to pay the costs and expenses of any sewer, street or other improvement;” and gives, as did the act of 1891, the right of appeal to one whose property has been taken, injured or destroyed, and extends the right to one who is assessed for benefits to pay damages for property taken. This act is constitutional, and if a party whose property is assessed for benefits to pay, exclusively, costs and expenses of the construction of an improvement, desires to raise a question as to the legal liability of his property for assessment, or whether a wrong rule has been adopted by the viewers in apportioning the charge, he may be heard on exceptions by the court and by appeal to the appropriate appellate court, but he has no right to a jury trial upon such questions: Brackney v. Crafton Borough, 31 Pa. Superior Ct. 413; Murdoch v. Pittsburg, 223 Pa. 280. When a report of viewers does not find any property to have been damaged and does not assess any property to pay damages, an appeal and demand for a jury trial which does not expressly state that the property of the owner who attempts to appeal was in fact damaged by the improvement, but simply asserts that the viewers made a mistake in assessing the benefits to pay the costs and expenses of the improvement, the appeal should, upon motion, be stricken off by the court: Seventh Street Sewer, 35 Pa. Superior Ct. 484. The act of 1903 provides that: “Upon the trial of any such appeal in court, the report of viewers, as finally approved, confirmed, modified or changed by the court, shall be
These offers of evidence were properly rejected by the court below, for the following reasons: (1) The report of viewers was not admissible generally, and the effect of the act of 1903 was only to make it admissible for the specific purpose in the statute designated; (2) when the plaintiff appealed and demanded a jury trial, under the conditions permitted by the act of 1903, the only question to be determined by the trial was the effect of the improvement upon the market value of her property. That was the test by which the jury must be governed, and by which the admissibility of any evidence offered must be
The judgment is affirmed.