21 Pa. Super. 234 | Pa. Super. Ct. | 1902
Opinion by
The property of the plaintiffs was situated in the township of East Pike Run and abutted upon a public road, which led through the borough of California and continued out through the township. In front of the property of the plaintiffs half of the highway, longitudinally, was within the borough and the other half in the township, the boundary being the center line of the road. This proceeding was instituted to recover for injuries resulting to the property of the plaintiffs from a change in the grade of the road by the officers of the borough. No objection to the form of the action was made in the court below, nor has that question been argued here, and for that reason we do not deem it incumbent upon us to consider it. The learned counsel who represented the appellant has confined his argument to the merits of the case, the right of the plaintiffs to recover, under the evidence, in any form of action. The grounds upon which he seeks to reverse the judgment are: (1) That there was no evidence to warrant a finding that the work was done under the authority of the borough; (2) that even if the borough authorities procured the work to be done it was not within the scope of their duties and the borough was not liable for the consequances; and (3) that the court charged as matter of law that the plaintiffs were entitled to recover interest from the time the work was done.
A number of witnesses testified as to the manner in which the grading was done and the disposition which was made of the material taken from the bed of the road by using it in grading
The borough could not have vacated or changed the location of the road in question: Somerset and Stoystown Road, 74 Pa. 61; South Chester Road, 80 Pa. 370. The road had long been used as a public highway and there is no question that it had been located and opened under legal authority. The Act of April 1, 1834, P. L. 166, imposes upon the authorities of a borough the duty to open such parts of any road laid out by order of the proper court as are within the borough limits. All public roads or highways are required by law to be constantly kept in repair, which duty is to be discharged by each municipality as to the highways within its limits. The authorities upon whom is imposed the duty to open a road laid out by order of the court are vested with a reasonable discretion to determine the amount of grading necessary to accomplish the result. The order of the court fixes the location of the road; the authorities of the boroughs and townships within which it is located cannot change the location, but they exercise a discretion as to the amount of cutting and filling which upon that location is necessary to make the road reasonably safe and convenient for travel. The Act of April 3, 1851, P. L. 320, section 2, expressly delegates to boroughs the power to régulate the roads, streets, lanes, etc., and the heights, grades, widths, slopes and forms thereof, “ and they shall have all needful jurisdiction over the same.” The authority to grade all streets and roads within the corporate limits is among the im
The learned judge helow inadvertently directed the jury to allow interest, from September, 1898, to the time of the trial, March, 1901, as matter of law. This was a technical error: Provident Life & Trust Company v. Philadelphia, 202 Pa. 78.