South Fork Borough v. Pennsylvania Railroad

251 Pa. 261 | Pa. | 1916

Opinion by

Mr. Justice Potter,

The first assignment of error raises the principal question in this case. It is there alleged that the court below erred in affirming plaintiff’s third point, which was, “that the lien is a valid and subsisting one, and the plaintiff should have judgment, if the jury find as a matter of fact that the premises described in the lien, or any part thereof, is a convenient possession affording facilities in conducting the business of the company, and enabling it to make money, and not an integral and indispensable part of the roadbed.” It seems to be conceded by counsel for appellant, that a portion of the property of the defendant, adjoining the street, that is, the platform and shelter station, being 34 feet in depth and extending along Railroad street, a distance of 144 feet, was subject, under the Act of 1911, to assessment and lien for the cost of grading and paving the street. It is also admitted that there is considerable other land, occupied by the platforms, shelters, ticket office, baggage and freight stations, and by dwelling houses and their appurtenances belonging to the railroad company, which were proper subjects for assessment and lien, if they are not too remotely situated, as to the street on which the improvement was made. That the roadbed and right of way of the railroad are exempt from assessment for municipal improvements, has been held in Philadelphia v. Philadelphia, Wilmington & Balto. R. R. Co., 33 Pa. 41; Junction R. R. Co. v. Philadelphia, 88 Pa. 424; Allegheny City v. West Penna. R. R. Co., 138 Pa. 375, and other cases which follow them. But this exemption does not extend to the stations, platforms and other property of the railroad, not absolutely necessary to the exercise'of the franchises of the corporation: Mt. Pleasant Boro. v. Balto. & Ohio R. R. Co., 138 Pa. 365; Philadelphia v. Philadelphia & Reading R. R. Co., 177 Pa. 292; Philadelphia v. North Penna. R. R. Co., 1 Pa. Superior Ct. 254. There was, however, in this case, evidence tending to show that there was a strip of ground between Railroad street and the roadbed of the defendant company extending the entire length of the street improvement. This strip varied in width from three and one-half to fifty feet. This appears from the testimony of plaintiff’s witness, the borough engineer, who prepared the plan marked “Plaintiff’s Exhibit No. 1.” The plan prepared by defendant marked “Exhibit No. 13,” also’shows that there is a strip of land between the street and the railroad track, extending the whole length of the improvement. If the jury believed the testimony of the witness, Thomas, plaintiff’s engineer, which was not contradicted, and was corroborated in part at least, by the testimony of defendant’s own engineer, they were justified in finding that at no point did the bed of the railroad directly adjoin or abut upon the street, but that other land of the defendant, not occupied by the railroad bed, lay between it and the street. The testimony, as to the intervening strip of ground was uncontradicted. This differentiates the present case upon its facts from Philadelphia v. Philadelphia, Wilmington & Balto. R. R. Co., 33 Pa. 41; Allegheny City v. West Penna. R. R. Co., 138 Pa. 375, and other cases, in which it appeared that the roadbed and the street immediately adjoined without any ground inteiwening. The fact that the lien may include ground upon which is laid parts of the roadbed and tracks of the railroad company, does not invalidate it. In Philadelphia v. Philadelphia & Reading R. R. Co., 177 Pa. 292, that question was considered, and it was held that judgment might be had on a claim filed against ground over which extends the right of way and roadbed of the railroad; but that a purchaser at sheriff’s sale under such judgment, would take the land subject to the railroad’s easement. Mr. Justice Dean, there said (p. 298) : “While we can from this record determine that a large part of this one thousand five hundred feet is not roadbed, we cannot say just how much is; but that fact prevents not the entry of judgment; the plaintiff has a lien on the land in excess of that not subject to municipal assessment; a sale of the land passes to the purchaser nothing the lien does not bind; he takes it subject to defendant’s easement. ......The city has its judgment in rem against land on which defendant had, under the law, before the filing of the municipal lien, a visible, notorious easement or right of way to the extent of its roadbed.......The roadbed running to the river through this yard being necessary to the existence of the road as a common carrier cannot be taken from it by a proceeding in rem against the yard ; the purchaser takes subject to the easement, just as the purchaser of land at sale under a mortgage takes subject to an open, visible easement antedating the mortgage.” The court below did not, therefore, err in accepting a verdict and in entering judgment for the full amount of the claim; if execution should be issued and there should he a sale upon the judgment, the purchaser would take the land subject to appellant’s right of way over the roadbed. ThereJ.s.. no..merit in the suggestion that J;ke verdict should have been directed for the defendant because no special benefits were conferred, on it by the grading and paving of the street. The work was done in front of defendant’s premises, and it is to be presumed that its property was thereby benefited. See Philadelphia v. Philadelphia & Reading R. R. Co., 1 Pa. Superior Ct. 236 (242), and cases there cited. Nor is the objection to the Act of May 12, 1911, P. L. 288, upon the gronnd of its unconstitutionality, well founded. The act is not local, as it relates to all boroughs in the Commonwealth. Nor is it special, as boroughs have frequently been recognized as proper subjects of classification. The language of this court in City of Scranton v. Whyte, 148 Pa. 419, is as applicable to boroughs, as to cities of the third class. It was there held, as set forth in the syllabus, that “The subject of the grading and paving of streets is clearly and exclusively one for municipal control. The power to collect the cost of the work so done by any appropriate form of taxation is a municipal power. Therefore an act upon this subject relating to one of the classes of cities is constitutional. So far as such an act applies in such cases the regular and settled course of procedure, as for example, the filing of a lien for assessment, with the usual procedure ■ thereunder, it does not offend against the Constitution by providing for peculiar local procedure.” Under the Act of 1911, the lien is made prima facie proof of the facts alleged therein. In the present case the lien was offered in evidence, and it was therein averred that the defendant company was owner of all the land described therein, including that between the railroad and the river. This averment was not denied in the affidavit of defense, or upon the trial. It is, however, suggested that the land north of the railroad was too remote from the street to be subject to assessment and lien for street improvements. Counsel for appellee makes reply that it is too late after judgment to raise the question that too much land has been included in the lien. However, that may be¿ it is not necessary to consider that question now, as the court will have control over any execution which may be issued on a judgment on the municipal claim, and, in any event, the purchaser will acquire title to that only which is covered by the lien,

The assignments of error are all overruled, and the judgment is affirmed.