68 Pa. Super. 404 | Pa. Super. Ct. | 1917
Opinion by
This appeal is from the entry of judgment for want of a sufficient affidavit of defense on a scire facias sur municipal 1 ien. The defense interposed was that the city, through its various ordinances, had agreed with the subsidiary companies forming a part of the Philadelphia Bapid Transit System to accept the obligation of these companies to pave the street in front of the appellant’s,property, which agreement under the law released the property owner from paying for this paving. See Philadelphia
The affidavit avers that the street in front of the appellant’s property was paved with Telford having brick gutters and cement curbstones, which paving extended the width of the street, except between the street car tracks, where it had been paved with Belgian blocks; and that said paving had been paid for by the property owners at the time it was laid. Since the case of Hammett v. Philadelphia, 65 Pa. 146, and the long line of cases following it, an abutting property owner is not liable to pay the cost of repaving a street. He is only liable for an original paving: Harrisburg v. Segelbaum, 151 Pa. 172. Repairing a street is part of the ordinary duties of a municipality. It cannot be met by local
As to the acts showing that this street had been previously paved and had been adopted as a permanently improved street, we discussed in Easton City v. Hughes, 66 Pa. Superior Ct. 589, what would constitute a first pavement and the elements necessary to evidence this fact; namely, the character of the construction and the intention of the municipality. The affidavit avers that the original paving was Telford, that the city recognized it as being an original paving, that it charged plumbers $6 for permits to dig up this street for connecting service pipes, or other street improvements, while on dirt streets a charge of «f 1 was made, and that the city kept this street in repair. All of these averments, if true, would not be sufficient to convert the street as then constructed into a permanently improved street. “Describing the work as macadam by witnesses or in reports, furnishes no information as to' the manner of construction and the materials entering into its construction”: York City v. Holtzapple, 67 Pa. Superior Ct. 596. The affidavit should set forth the materials entering into and the manner of constructing the Telford. This word has a technical meaning, but as commonly used, it is made to cover construction that would not be considered of a permanent nature. It is, therefore, important to show in some detail how it was built. Assuming that it might be adopted by Philadelphia as an original paving, the averment that the city recognized it as such is a conclusion. The affidavit must state the acts bv which the
The judgment of the court below is affirmed.