48 Pa. Super. 648 | Pa. Super. Ct. | 1912
Opinion by
This is a scire facias upon a municipal lien- for paving filed by the city of Philadelphia against a lot of the appellant fronting upon the southeast side of- Richmond street. The learned judge of the court below.instructed the jury to find a verdict in favor of the city for the full amount of
Richmond street had been duly widened and relocated, under a city ordinance, in 1894. The street had been an old city street fifty feet wide and had been paved and sidewalks had been laid prior to 1894, whether at the expense of the property owners or of the city did not appear in evidence, and for purposes of this case is immaterial. The work done under the ordinance of 1894 made the following changes in the street: the building line on the southeast side of the street was moved northwestwardly twelve feet, thus adding to the depth of the defendant’s lot which abutted upon that side twelve feet, and the new street was opened of a width of 120 feet. • There was thus included in the width of the new street the cartway of the former street, twenty-six feet wide, and the sidewalk upon the northwest side of the street, twelve feet wide, maldng in all a width of thirty-eight feet which had been paved, before the city changed and widened the street. Eighty-two feet in width of the new street, next to the building line on the northwest side never had been paved, either as cartway or sidewalk. The street continued in this condition for eight years, when in 1902 the city proceeded in a regular manner to pave the entire cartway of the street and in doing so established the curb line upon the northwest side of the street at a distance of eighteen feet from the building line, thus leaving to be paved as cartway sixty-four feet of the width of that part of the street which had never before been paved. The tracks of a steam railroad and a street railway were located along the street, within these sixty-four feet in width of new paving, and the rails of these tracks, in the aggregate, occupied three feet in width, thus leaving the net width of the paving upon that part of the width of the street which had never before been paved sixty-one feet. The city did not attempt to charge the abutting property for the repaving of that part of the street which had prior to that time been paved either
The able and ingenious counsel for the appellant contends that the assessment for paving the new part of the cartway should be held invalid, or that it is at least so far placed in question as to require the submission of pertinent questions of fact to the jury, because it appears that the work was done for the benefit of the general public. His argument is based largely upon the fact that the ordinance of 1894, under which the street was relocated and widened, was part of a general scheme for the benefit of the entire surrounding district, and involved the vacating of a number of streets and the widening and relocation of others. The argument might be entitled to consideration if the city had undertaken in a single proceeding to make all the changes contemplated by the ordinance of 1894 and to grade and pave all the streets affected by that ordinance, but this it did not do. Counsel in his brief concedes that “It is to be presumed that if there was any benefit at all to the defendant’s property by the widening of Richmond street it was assessed benefits under the Act of April 21, 1858, P. L. 385.” It may properly be added that if this appellant wás entitled to damages because of the relocation and widening of Richmond street, which incidentally added twelve feet to the depth of his lot, he must be presumed to have recovered those damages in the manner authorized by law. Certain it is that the city cannot, nor is it making the attempt in this proceeding to do so, recover for benefits, nor is the defendant entitled to raise the question that his property was damaged by the widening of the street, which had occurred eight years before the city determined to do the paving out of which this assessment arose. The defendant cannot be assessed for benefits, resulting from
The legislature of the commonwealth has conferred upon the city of Philadelphia the power to assess the cost of the original paving of a street upon the property in front of which the work is done, according to the extent of frontage, that is, according to the foot-front rule. It has been frequently held by our Supreme Court that local assessments for street improvements are sustainable only on the basis of special benefit and the limit of the benefit is the limit of the taxing power. This is the principle of taxation on which such assessments are founded. “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 the uniformity of value, but in the uniformity of benefit. The .latter is not always, and perhaps not even generally dependent on the former, or in any fixed ratio to it. 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 property abutting on the line of the improvement, it is presumed to be fairly measured by the foot frontage of the property on that line,
The fact that there were steam railroad and street railway tracks in the street, being lawfully there, did not change its character as a public highway, and as the defendant was not asked to pay for the part of the street occupied by the rails their presence in the street did not relieve him from liability: Scranton v. Koehler, 200 Pa. 126.
The judgment is affirmed.