81 Pa. Super. 243 | Pa. Super. Ct. | 1922
Argued October 17, 1922. This is an action of scire facias sur municipal claim for paving. The court below entered judgment for want of a sufficient affidavit of defense, and the defendant appeals. The defendant, by his affidavit, attempted to set up two grounds of defense: (1) that the work for which the assessment was made was not the original paving of the street, but a repaving of what had long been a city street, and (2) that the property was rural in character, and, therefore, not subject to assessment by the foot-front rule, which had been applied in this proceeding.
The affidavit asserted that the street in question was a "portion of one of the most ancient highways of the Commonwealth of Pennsylvania, viz, the direct highway from Philadelphia to New York, and that a turnpike was constructed and maintained thereon" by a company named, in 1804, and later by another duly incorporated *245
turnpike company under the authority of the Act of Assembly approved April 14, 1840, P.L. 324; that the said turnpike companies constructed and maintained, upon the part of the highway in question, "a permanent macadam pavement, consisting of a solid foundation of stone, with a surface of smaller stones extending from curb to curb, and constituting a substantial, permanent and durable pavement, thereby changing the character of the said highway from a road to a city street"; that by decree of the Court of Quarter Sessions of Philadelphia County, entered in 1902, the said highway was condemned for public use free from tolls and gates, and thereafter the said roadway became the property of the City of Philadelphia. The affidavit further averred that the city had, since 1902, revised the curb lines of the street, changed the name thereof, revised the lines, grades and width of the avenue and "repaired and maintained the said roadway and repaved the said Bustleton Avenue from curb to curb within the limits aforesaid, from time to time, with macadam paving, and has maintained the said Bustleton Avenue within the limits aforesaid for the purpose and with the intent of changing the toll road into a village or city street; and thereby the city has recognized the macadam paving laid by the turnpike companies as the original pavement, and the road so laid and built was adopted and acquiesced in by the city as a well-paved city street." The foregoing are the material averments of the affidavit which relate to this particular branch of the case. It cannot be seriously contended that the construction of the highway by the turnpike companies constituted a city street between Philadelphia and New York. In Phila. v. Eddelman,
When we come to consider the second ground of defense set forth; that the property is rural in character, and not legally subject to assessment under the foot-front rule, we find in the affidavit of defense no averment *247
as to the size of the lots which directly abut upon the improvement, nor whether they are built upon. The affidavit says nothing about the uses to which the abutting property is devoted. The lot of the defendant has a frontage of 39 feet, 8 inches and a depth of 189 feet, 10 inches, but the affidavit is silent as to what improvements are thereon erected. The affidavit asserts that the property is located in the village of Bustleton, that it is a rural community located about twelve miles northeast from City Hall, Philadelphia, and extending in length along Bustleton Avenue about one mile, and in width less than half a mile; "that the said village is surrounded on all sides by open farm land which extends for five miles between the said village of Bustleton and the nearest improved section of the City of Philadelphia." The affidavit further asserts that the village has no municipal water system, except for fire purposes, and no other municipal improvements, except electric lighting. The propriety of making assessments according to the foot-front rule is dependent upon the character of the property which abuts upon the improvement, not upon that of land surrounding a village which is a mile long and half a mile wide. When the pavement is that of a street which passes through properties of widely varying character, with here and there a building directly fronting on the improvement, and wide intervals of land used exclusively for agricultural purposes, there can be no uniformity in the benefits resulting to such properties from the paving of a street, and the application of the foot-front rule must result in great injustice. "While the foot-front rule of assessment, it is true does not express a principle of taxation but merely a convenient method, yet its foundation is not in uniformity of value, but in uniformity of benefit...... Properties in the same general situation are presumed to get the same general benefit from a common improvement, and as this benefit is assessed exclusively on the property abutting on the line of the improvement, it is presumed to be fairly *248
measured by the foot frontage of the property on that line, though values may be and usually are very different, and dependent on other circumstances, such as the depth of the lots, the buildings erected upon them, the use to which they are put, and their proximity to business centers": Witman v. Reading City,
The judgment is affirmed.