McKeesport Boro. ex rel. McKeesport City v. Busch

166 Pa. 46 | Pa. | 1895

Opinion by

Mb,. Justice Green,

The learned court below instructed the jury that if “there never was, nor now legally is, a Cliff street ” this is a good defence, “ if it be established that the improvement made was not.of a public highway or street known and recognized as such and identified as Cliff street.” The petition and ordinance were for the improvement of Cliff street between Fifth avenue and Elm street, and it was not disputed that there was originally a township road between those points, on which the defendants’ property abutted; as to whether this was a part of Cliff street there was conflicting testimony, and the question was necessarily for the jury. They have decided that question in favor of the city, and we cannot reverse their verdict. The fact that it was a public highway was not disputed, and whether it was known as Cliff street was a pure question of fact.

There was affirmative testimony that the petition was signed by a majority of the property owners along the line of the improvement, and we are not referred to any testimony which denied the fact. Of course it was a question for the jury and as such was referred to them by the court..

The lien is certainly lacking in not defining in some way the depth of the lot. But the frontage is given and the boundaries on either side, and a petition to amend the description was presented to the court after verdict, and allowed. This petition is not printed by the appellant and the inference therefore arises that the defect in the description was cured by the amendment. The act of 1867, P. L. 732, under which the proceeding was had, expressly provides that no error in the names, or misdescription of the property, shall vitiate the statement of claim, and that the same may be amended on application to the court. As no limit of time is prescribed within which the petition to amend must be filed, it may be presented at any time before the statute of limitations has closed on the claim.

The appellants contend that the lien was not filed in accordance with the act of 1867. An examination of the record in relation to this subject shows that the petition for the passage of the ordinance asks that it be granted under the provisions of the act of 1867 and its supplements. The ordinance declares that it is enacted under the provisions of the same act and its supplements. The claim of lien declares that the work was done and the assessment made under the provisions of the act of 1867, and that the claim is filed in accordance with that act. The affidavit of claim alleges that the ordinance was passed, the' grading and paving done, the amount assessed and demand made, in accordance with the same act and its supplements, and that a lien was filed in accordance with, the act of 1891, P. L. 69. The latter act does not repeal or change the provisions of the act of 1867, but is rather intended to provide somewhat more specifically for the practice in cases where any final assessments have been made. It is true it says the lien shall date from the time of the final confirmation of the report under which the assessment may have been made, but it does not invalidate assessments which have not been made in that way. It, of course, would be applicable to all such assessments as require a final confirmation of a report under which they were made, or a final decree of the court fixing such assessments. The requirements of a valid lien fixed bjr the second section of the act appear to have been complied with in the lien filed in this case. The claim of lien contains the names of the owners or reputed owners, a reasonable description of the property, as amended, the amount claimed to be due, for what improvement the claim is made, and the time when the final assessment was made, and the authority by which it was made. These are all the requisites of the act of 1891, and as these were valid under the special law of 1867 we discover no reason for holding them invalid under the act of 1891.

We can discover no good reason for holding that the foot-front rule does not apply. The act of 1867 especially enjoins it, and objections to its application growing out of inequalities of the surface which seem to make some cases harder than others, are not fundamental so as make the rule inapplicable on that account. It may well be that the improvement is less valuable to some owners than to others, and that the burthen of payment is more oppressive to some than to others, but that consideration cannot suffice to change the application of the rule. In City v. McCormick, 129 Pa. 218, speaking upon this subject, we said, “ It is perhaps impossible to frame any general rule that would produce exact uniformity and do equal justice in all cases. This arises from the fact that a rule to be valid must be general, and the further conceded fact that, in the application of all general rules, there will be cases of individual hardships.”

In Michener v. Philadelphia, 118 Pa. 535, we said, “ The plaintiff alleges, however, that his property is not benefited by the sewer. He may or may not be mistaken in this. We cannot say. But this is a species of taxation, and all taxation-is presumed to be for the benefit, directly or indirectly, of the taxpayer or his propertjr. Laid as taxes are under general laws, there will always be cases of apparent individual hardship. . . . And it would be intolerable if in every instance of a special taxation the question of benefits could be thrown into the jury box.” In Hammett v. Phila., 65 Pa. 155, Sharswood, J., delivering the opinion, said, “Perhaps no fairer rule can be adopted than the proposition of feet-front, although there must be some inequalities if the lots differ in situation and depth. No system of taxation which the wit of man ever devised has been found perfectly equal.”

The appellants are doubtless unfortunately circumstanced in respect of the character of their surface, but that fact cannot change the application of the rule. We see no error in the record and the assignments of error are all dismissed.

Judgment affirmed.