35 Pa. Super. 484 | Pa. Super. Ct. | 1908
Opinion by
The sewer in question was constructed under the authority of the city, duly exercised and entirely within the lines of a public highway. The proceedings ■ before the viewers appointed by the court below, under the provisions of the Act of May 16, 1891, P. L. 75, and the supplements thereto, were in all respects regular. The viewers filed a report finding the cost and expenses of the construction of the sewer to be $10,379.35, of which amount there was assessed against the city of Chester $6,195.45, and the balance was assessed against abutting properties peculiarly benefited, including an assessment of $1,500 against the property of this appellant. The report of the viewers shows that the Chester Steel Castings Company was represented before the viewers and that neither it nor any other party made any claim for damages to property resulting from the improvement, that no damages were awarded by the viewers for property taken, injured or destroyed by the improvement, and that there was no assessment of benefits Upon any property to pay damages for property so taken, injured or destroyed. The assessments were exclusively to pay the costs and expenses of the sewer. The appellant filed no exceptions to the report of viewers, but appealed to the'court of common pleas and demanded a jury trial. The court below,
The Act of April 2, 1903, P. L. .124, amending the second and sixth sections of the Act of May 16, 1891, P. L. 75, contains the following provisions which are material in determining the sufficiency of the ground upon which the appellant asserted its right to an appeal and a jury trial in the court below: “Within thirty days after the confirmation, modification, changing or correcting of any report, any interested party may appeal from said decree to the Superior Court or to the Supreme Court, as the case may be. The said report, when and as finally confirmed shall be conclusive as to any assessment made therein to pay the costs and expenses of any sewer, street or other improvement. And within thirty days after said report is filed in court, as aforestated, any party whose property is taken, injured or destroyed, or who is assessed benefits to pay damages for property taken, injured or destroyed, -may appeal to the court of common pleas, and demand a trial by jury, according to the course of the common law. Every appellant shall state in the appeal the grounds upon which or for which the appeal is taken, and the same shall be signed by the party or parties taking the appeal, or by his or their agent or attorney.” Under these provisions of the statute the owner of property which is assessed only to pay the cost of the construction of a sewer does not have the right to appeal from the assessment and demand a jury trial; it is only the party whose property is taken, injured or destroyed, or who is assessed benefits to pay damages for property taken, injured or destroyed, who is possessed of such right. The only remedy of an owner who is assessed for benefits to pay the cost of the construction of a sewer, exclusively, is to file exceptions to the report of viewers and thus secure a modification of the assessment, in the manner provided by the statute: Brackney v. Crafton Borough, 31 Pa. Superior Ct. 413. The report of viewers awarded no damages for property taken, injured or destroyed, and neither this appellant nor any other owner was assessed benefits to pay damages for any property so injured; if, therefore, the steel company was within the class of owners
“-"•The order of the court below, is affirmed.