22 Pa. Super. 526 | Pa. Super. Ct. | 1903
Opinion by
This is an appeal from an order of the quarter sessions of Philadelphia county quashing the petition of the Baptist Orphanage for an assessment of damages caused by the opening of Whitby avenue through its property.
It appears that the street was duly laid out and plotted upon the confirmed public plans of the city of Philadelphia and that on April 8, 1890, an ordinance was approved authorizing and directing the director of public works to notify the owners of property through and over which the street would pass that at the expiration of three months from the date of said notice their property would be required for public use, and authorizing the mayor to enter security for payment of damages which might be awarded, “so that said street may be opened at once.”
On May 24,1890, upon petition of the mayor setting forth that notice had been given as required by the ordinance, a rule returnable on June 7, 1890, was entered on registered owners to show why the city should not have leave to file its bond to secure payment of damages, and upon approval of the security “ to enter upon and immediately open the said street to public use between the points named.”
On June 6, 1890, affidavits of the publication of notice of the rule and of service of same on property owners wmre filed. The latter affidavit set forth that notice was served on certain property owners, naming them, personally, and as to others averred as follows: “ And upon each of the following named persons by leaving a copy of said notice at the place of residence with an adult member of the family; Baptist Orphanage with a nurse or servant on premises, Angora.”
On June 12, 1890, the court made the rule absolute and entered the following decree: “ And now this 12th day of June, A. D. 1890, it is ordered, adjudged and decreed that the bond of the city of Philadelphia in the sum of $5,000 be and is hereby approved and directed to be filed herein and the director of public works is hereby authorized and directed to immediately enter upon and open Whitby avenue from Fifty-third street to Cobbs Creek in the ward to public use.”
On March 22, 1902, the city moved to quash the petition because, first, the ordinance was approved more than six years prior to filing the petition; second, security was duly entered more than six years prior to filing the petition; third, the time within which under the law a petition can be filed and any recovery had has expired ; fourth, the petitioner is without remedy and can have no recovery for any damages alleged to have been sustained.
On April 28,1902, after hearing argument on the motion the court quashed the petition without opinion filed and from that order this appeal was taken.
Sec. 7 of the Act of April 21, 1855, P. L. 264, provides that whenever councils shall deem the public exigency to demand it, they may order by ordinance any street laid upon any of the public plans of the city to be opened, giving three months’ notice thereof to the owner; whereupon any of the owners, whose ground will be taken by such street, may forthwith petition the court of quarter sessions for viewers to assess the damages which such owners may sustain by the opening of such street. It has been held that under the act of 1855 the city of Philadelphia is liable for damages which the owners of land may sustain by reason of the opening of public streets, where, in accordance with the provisions of the act, an ordinance has been passed for that purpose, and notice thereof has been given as is therein provided, although there has been no actual opening of the street: Philadelphia v. Dickson, 38 Pa. 247; Philadelphia v. Dyer, 41 Pa. 463; Norris’s Appeal, 61 Pa. 422; Uhler v. Cowen, 199 Pa. 316. It is thus seen that if due notice was given in 1890 to the appellant, its right to have an assessment of damages accrued at that time although the street was not physically opened until 1902. It is claimed by counsel for the city that this right was barred by the Act of May 23, 1891, P. L. 109, which reads as follows: “ That
We are not unmindful that our jurisdiction on this appeal, which in effect is but a certiorari, does not extend to a review of the decision of the quarter sessions of questions of fact. If, therefore, it appeared, or there were any grounds for presuming, that the court heard evidence as to the fact of notice to the appellant and the date of such notice, and based its decision on a finding therefrom that notice was given more than six years before the petition was filed, we .would necessarily be compelled to accept that finding as conclusive. But it is not asserted by counsel for the city that the court had such evidence before it; nor is it necessarily to be presumed from the record. On the contrary, the fair inference from the record is that the court quashed the petition, either because it deemed the omission to set forth the fact and date of notice a fatal defect, or because in this proceeding the fact that notice was given more than six years before the presentation of the petition must be legally presumed from the adjudication of June 12, 1890, or because the appellant by presenting its petition under the act of 1855 must be deemed to have admitted that the
The two other questions may be considered together. As already shown the petition sets forth the adoption of the ordinance, and alleges that pursuant thereto the city is opening the street and is appropriating appellant’s land. This was sufficient to give the court jurisdiction to appoint viewers to assess damages, even though there was no affirmative allegation that the appellant’s remedy was not barred by the act of 1891. It is true that, so far as appears therefrom, the city is proceeding in a lawful manner to open the street, which would not be the case if notice was neither given nor waived. At first blush there would seem to be inconsistency between the position assumed by the appellant in its petition in order to obtain an assessment of damages in the statutory mode, and the position assumed by its counsel in order to avoid the effect of the act of 1891,
The order is reversed, the petition reinstated and the record remitted with a procedendo.