In re Orkney Street

9 Pa. Super. 604 | Pa. Super. Ct. | 1899

Opinion by

Rice, P. J.,

Prior to these proceedings Orkney street was laid out upon the confirmed plan of the city of Philadelphia, and according to the plan, extended from Ontario to Westmoreland; but a portion of it running through land of Brocklehurst and Ewing had not been opened. The result was that the properties of these exceptants were upon a cul de sac. It does not affirmatively appear that they had been assessed for the cost of the opening of the street to Brocklehurst’s and Ewing’s land; but we are left to infer from what is stated in the opinion of the couit below and at bar, that the owners had dedicated the land over which that portion of the street extends. At all events, it was a paved and curbed street, and open to public travel from Ontario street to the point above-mentioned long before the adoption of the ordinance about to be referred to. An ordinance was adopted opening the street through its entire length to Westmoreland, and viewers were appointed to assess the damages of Brocklehurst and Ewiñg. They reported that •these were $4,400, and that of this sum the sum of $1,333.24 should be paid by the city, and the balance should be paid by the property owners on the previously opened portion of the street, for benefits. The question is as to the validity of these assessments for benefits.

If this had been an open street throughout its entire length from Ontario to Westmoreland and one end had been closed by vacation proceedings, these^acheptants would have had a right in law to claim damages. Why ? Because by reason of the closing of the street they would have sustained an injury in their properly rights, peculiar to themselves, and different in kind from the injury which would have been sustained by those who used the street for travel only. “ The injury is not of the same kind, differing in degree only; it is an additional injury, caused by the impairment of an entirely distinct right, the special right of ingress and egressIn re Melon Street, 182 Pa. 397. This being so, it is argued that the converse of the proposition must be true, namely, that the conversion of the cul de sac into an opeu street, thus giving two modes of access to their properties where only one existed before, was, or at least may have been, a peculiar benefit differing in kind and not merely in degree, from that accruing to properties fronting on another street or on another block of the same street. But before pursuing this line of argument further, it will be well to consider whether or not the liability of properties, situated as these are, to special assessment to pay the cost of public improvements is an open one, and whether another principle does not .enter into the case.

In Morewood Avenue, 159 Pa. 20, Mr. Justice Green, after an exhaustive review of the earlier cases, including Extension of Hancock Street, 18 Pa. 26, which is much relied on here, states the doctrine established by them in this way: “ As we have repeatedly decided, the doctrine of assessment for benefits, to pay for public improvements, can only be defended upon the ground that the benefits are local and essentially peculiar to the very property assessed, aird then it can only be done once. This can only be the case where the property assessed abuts directly upon the line of the improvement. Having their own burdens to bear in this respect, the owners cannot be subjected to the discharge of similar .burdens upon other properties, whether situate on the same street or in the same neighborhood.” The rule, as thus stated, was reiterated in Fifty-fourth Street, Pitts-burg’s Appeal, 165 Pa. 8, a case of grading, paving and curbing where the property assessed abutted on the same street but not on the part improved. It is to be noticed, also, that it was alleged on the argument of that case that the only outlet for the property was over part of the improvement; but this allegation was not referred to in the opinion, as it doubtless would have been if the Supreme Court had deemed it sufficient to distinguish the case from Morewood Avenue. The order sustaining the exception to the assessment was affirmed upon the ground, that, as the property did not abut directly upon the line of the improvement, it was not subject to an assessment for benefits. Morewood Avenue has been followed, and the principle upon which it was decided applied to sewer assessments, notwithstanding the argument that a public sewer is a special benefit to all the properties situated in the same “ watershed: ” Park Avenue Sewers, Parker’s Appeal, 169 Pa. 433; Witmanv. Reading, 169 Pa. 375; Beechwood Avenue Sewer, 179 Pa. 490, 494. We may also refer in passing to the case of Speer v. Pittsburg, 166 Pa. 86, where it was held that the words “ majority in interest and number of owners of property abutting on the linof the proposed improvement ” (Act of May 16, 1891, sec. 9, P. L. 71), mean the majority on the portion of the street to be opened, and not the majority on the1 whole street. “ Any other construction,” said the court, “ would be contrary to the letter as well as the manifest spirit of the act.” In Verona Borough, 4 Pa. Superior Ct. 608, we followed the ruling in Morewood Avenue and applied it to a case precisely like the present.

It is vain to argue that Morewood Avenue can only be regarded as a binding authority where the proceedings are under the act of 1891. It not only construes that act, but it also lays down a general rale, based upon a consideration of the nature of local assessments for public improvements and of the limitations of the power of the legislature in that regard, which, although the act were as broad in terms as the Act of April 1, 1864, P. L. 206, would defeat any assessment of nonabutting property for paving or sewering, or other improvement of the same kind. If these cases are to be distinguished from the present it must be on some other ground than that the act of 1864 authorizes such assessments and the act of 1891 does not.

It is argued that assessments for street openings are in a different class from assessments for sewers, and for grading, paving and curbing, and that in laying down the rule quoted at the outset of this opinion the Supreme Court had no thought of including assessments of the former class. We do not think we would be warranted in denying application of the rule to the present case upon airy such assumption. The ruling was made, said Mr. Justice Green, “ after much deliberation and the most mature consideration” (Fifty-fourth Street, supra), and whilst it is true that all of the street opening cases were not referred to in the opinion, yet it is also true that the leading case upon that subject was critically examined and reviewed. Speaking of that case (Extension of Hancock Street, supra), the court said, that the constitutional question, whether the act rvas void as to lots located away from the line of the improvement, was neither discussed nor decided, and even if the case had decided that such lots could be assessed for benefits it would have to be regarded as practically overruled by the later case of Washington Avenue in which the question was met and decided the other way. Chestnut Avenue, 68 Pa. 81, and Main Street, Big Run Borough, 137 Pa. 590, were not referred to, but judging from the reports of those cases the remark, that the constitutional question under consideration was neither discussed nor decided, would apply as well to them as to the Hancock street case.

It may be said that the constitutional question did not necessarily arise in the Morewood Avenue case. Possibly not. But it was raised by counsel, and after a thorough consideration of it the court decided it. When liability of non-abutting property to assessment is defended against upon constitutional as well as statutory grounds, and both grounds of defense are held to be good by the court of last resort, and either of those questions arises in a later case, will any other state court be justified in holding that the precedent is not of binding authority in that case, because, forsooth, the decision might have been based on the other ground exclusively'? We think it more in accordance with sound principle to say that the general rule upon the subject laid down by the Supreme Court in such a ease ought to be followed by all the other courts of the state until it is modified or qualified, unless it can be shown that the particular case for decision differs in essential facts, is clearly not within the reason of the rule, and, therefore, presumably, was not intended to be embraced within the rule itself.

Is this sucha case? Granting, for the sake of the argument, that it is not within the reason of the first branch of the rule, what is to be said of the application of the second branch ? It may well be that the properties of the exceptants are enhanced in value by the opening of the street through to Westmoreland street, and in view of the decision in the Melon Street case it would seem inconsistent to declare as a matter of law that the additional mode of ingress and egress that is to be given is in no sense a special benefit; but there remains the objection that, by dedication or otherwise, these properties were made to bear their full share of the cost of the original improvement. Can they be assessed again to pay the cost of extending that improvement through other properties ? Can a street be opened piecemeal, and the properties abutting on the part first opened be assessed for benefits to pay the cost of extending the improvement a second or a third time? The repaving of a street is in a sense a special benefit to the properties abutting on it; but it is settled beyond all controversy that it cannot be done at their expense: Hammett v. Philadelphia, 65 Pa. 146; Williamsport v. Beck, 128 Pa. 147. The same is true of the extension of a pavement? What is the distinction? We are unable to answer these questions in accordance with the appellant’s contention and at the same time reconcile the decision with the rule laid down in Morewood Avenue and followed by us in Verona Borough. If that rule is to be modified, we do not think that it will be done upon the ground that an assessment according to benefits in a grading and paving case is so different in essential particulars from a similar assessment in a street opening case that in the former case a property abutting on the street can be assessed but once for the improvement, whilst in the latter case it may be assessed and reassessed as often as the street is extended. It seems to us that 'the rule is a general one, and, ordinarily, is as applicable in one case as in the other.

Whilst the decision in the Melon Street case does suggest a possible distinction, yet it does not distinguish the two classes of cases in every particular. If for this, or any other reason, the rule is to be modified and exceptions recognized, our duty to wait until it is done by the Supreme Court is plain. An opposite course, even if we were disposed to adopt it, would simply lead to confusion.

We conclude, therefore, that the learned judge of the court below was right in holding that the cases above cited were of binding authority and were applicable to the present case notwithstanding the fact that the proceedings were under the act of 1864 and not the act of 1891.

This conclusion renders it unnecessary to express any opinion upon the question as to the authority of the. jury to go on with the proceedings after the next term succeeding their appointment without a formal continuance of the order made during that term.

Order affirmed.