In re Opening of Spring Street of Reading

112 Pa. 258 | Pa. | 1886

Mr. Justice Paxson

delivered the opinion of the court, April 12th, 1886.

This proceeding was had under the Act of 26th April, 1864, P. L., 601, which conferred upon the Court of Quarter Sessions of Berks county the power of appointing viewers to assess the damages for opening streets in the city of Reading. The Act also provides that the damages when assessed shall be paid by the county of Berks.

. The viewers were appointed upon the application of the municipal authorities of the city of Reading. They assessed damages in favor of Ellen Spohn to the amount of $1,516.66, and in favor of Angeline Mohr to the amount of $833.33. Tiie l'eport of the viewers has been confirmed absolutely by the Court of Quarter Sessions without any objection on the part of either of the persons in whose favor the award was made. Their land has been since taken and the street opened. The city now refuses to pay, whereupon the court below issues a peremptory mandamus, commanding the city to provide for the payment of the amounts awarded by the viewers, to which writ this certiorari was taken.

The Court of Quarter Sessions has no power to award the common law writ of mandamus. In re Sedgley Avenue, 88 Penn. St. Rep., 509. But as was said in that case it may enforce its own judgments in regard to the payment of land damages for the opening of streets. I do not regard the objection in this case as being based upon the form of the order any more than it was in Sedgley Avenue. The objection lies deeper.

la August, 1874, the city of Reading brought itself under the provisions of the Act of May 23d, 1874, entitled, “ An Act dividing the cities of this state into three classes, etc., and providing for the incorporation and government of thé third class.” It now holds its charter under said Act, and its former charter has been abrogated. By clause 38 of section 20 of said Act the councils of said city are empowered “To open, widen, or otherwise improve or vacate any street, avenue, alley or lane within the limits of the city, and also to create, open and improve any new street, avenue, alley or lane and by the 39th clause of said section, “To create, open, widen or extend any street, avenue, lane or alley, or annul, vacate or discontinue the same whenever deemed expedient for the public good.” P. L., 233 and 243. If this were all it might well be a question whether the jurisdiction of the Quarter Sessions was ousted by the Act of 1874. But the 53d section of said Act provides: “ That in all cases in which, under the provisions of .this Act, either in the opening or widening of streets,.....the said city cannot agree with the owner or owners thereof for the compensation proper for the damage done or likely to be done to or sustained by any such owner or owners of such land or materials which said city may enter upon, use, etc.,.....the Court of Common Pleas of the proper county, on application thereto by petition, either by said city or owner or owners, or any one on behalf of either, shall appoint seven discreet and disinterested freeholders of the proper county ” to assess the damages which such owner lias sustained by reason of the taking of his land, etc., which damages when so assessed shall become a judgment of said court and shall be paid by said city.

It was conceded by the court below, and is not denied by any one, that the proceedings were irregular, for the reason that since the Act of 1874, proceedings for the assessment of- damages for the opening of streets in the city of Reading should' be commenced in the Common Pleas. It is equally clear that had the property owners come in at any stage and objected to the want of jurisdiction, the objection would have been fatal. But they did not object then nor do they object now. The point is taken by the city which instituted these proceedings; prosecuted them to final judgment, and has opened the streets and appropriated the land of the property owners. It is an ungracious defence and not creditable to the municipal authorities of the city.

We do not regard the defence as well taken. While it is conceded as a general rule that consent will not give jurisdiction, yet we are not to lose sight of the fact that the Court of Quarter Sessions has a general jurisdiction over the opening of streets and the assessment of. damages therefor. And while in the particular portion of territory embraced within the city of Reading that jurisdiction 1ms been transferred to the Court of Common Pleas, the fact remains that the city not only consented to but invoked the jurisdiction of a court having such general jurisdiction, and having now obtained the fruits of their proceeding, it does not lie in the mouth of the municipality to raise such aii objection as this. Had the parties consented to the jurisdiction of a court having no general control of such matters, as, for instance, the Orphans’ Court, the proceedings would have been absolutely void, and no consent of either party would have worked an estoppel. But as the case stands we are of opinion that good faith and fair dealing alike require the city to pay their awards, and to this end the proceedings below are

Affirmed.