Morewood Avenue

159 Pa. 39 | Pa. | 1893

Opinion by

Mr. Justice Green,

As the property of the appellant in this case abuts upon the line of the improvement, it is subject to an assessment for benefits. The validity of the report of the viewers may be considered under the first assignment of error, and, as the decisions of this court in Travers’ Appeal, 152 Pa. 129, and Wilson’s Appeal, 152 Pa. 136, are fatal to the report as the basis of any decree, the first assignment must be sustained. The second assignment must be sustained for the same reason. We think also that the third assignment must be sustained. In this case exceptions were filed with the viewers before their report was presented to the court. The seventh clause of the first section of the act of 1891, P. L. 71, provides that “ on the day named, if no exceptions are filed, or, if exceptions are filed, then upon a subsequent day to be named by them, said viewers shall file their report in the proper court of common pleas, and thereupon said court shall approve the same nisi, and within twenty days thereafter any person in interest may file exceptions to any part or the whole of said report.”

• It will be seen that the language is specific and mandatory. If exceptions are filed with the viewers they must name another and subsequent day for filing their report in court, and the parties have twenty days after that time to file their exceptions in court. The viewers did none of this, but proceeded to file their report on the first day named by them in their notice, to wit, July 13, 1892. The report was therefore filed without authority of law and the appellant was deprived of the time which the statute gave -him for filing exceptions in court. In the case of Western Pennsylvania Railway Co. v. City of Allegheny, 92 Pa. 100, we held that a city can create a valid municipal lien for improving a street, only when the improvement is made in pursuance of law, and the mode by statute or ordinance is strictly followed. We made the same ruling in Hershberger v. Pittsburgh, 115 Pa. 78, and we held that the property owner could only be made subject to a lien for the improvement when the power conferred on the municipal authorities has been legally exercised. We sustain the first, second and third assignments of error and dismiss the fourth and fifth.

The decree of the court below is reversed, the report of the viewers is set aside at the cost of the appellee, and the record is remitted for further proceedings.