58 Pa. Super. 38 | Pa. Super. Ct. | 1914
Opinion by
The borough of Edgewood opened Race street. Viewers were appointed under the Act of May 16, 1891, P. L. 75. The benefits assessed by the viewers equaled the damages awarded. The plaintiff paid her assessment. Subsequently some of the parties affected appealed and the amount of damages was reduced and the borough has received from the benefits paid an amount in excess of the damages awarded. The plaintiff has brought suit against the borough for her proportion of the excess. The question before us is: Can the borough keep this money and thus make a profit out of the transaction or must it return to the various parties who paid their assessments for benefits their ratable proportion of this money received in excess of the damages awarded?
The third section of the Act of May 16, 1891, P. L. 75, provides, “The payment of damages sustained by the making of the improvement aforesaid, or by the vacation of any public highway, may be made, either
The appellant contends that the words in the act, “The total assessments for benefits shall not exceed the total damages awarded or agreed upon,” have relation only to the report of the viewers; that a subsequent change in the amount of the damages awarded does not affect the right of the parties as determined by the report; that the verdict of the jury is in no sense of the word an award; that as long as the viewers limit their assessment for benefits to the amount of damages awarded a proper compliance with the act is had.
We think this is sticking too closely to the letter and departing from the spirit of the act. The legislative intent is apparent. The viewers with the approval of the court may put the cost of this improvement either in whole or in part upon the properties benefited and thus relieve the borough of the burden of paying the improvement, but the latter is not to make any money out of the proceeding.
Whatever distinction may be drawn between an award of a board of viewers and a verdict of a jury, the purpose of the act is not affected. When all is done the total benefits shall not exceed the total damages. The plaintiff in this case is not to pay for something she did. not. get. All she is. liable for is her proportion of
The amount which the borough received was applicable only to the payment of damages and to nothing else. To allow this borough to keep this money would be unjust and without warrant of law. As found by the court below, “In equity and good conscience defendant should refund to the plaintiff the amount sued for. It collected it and held it as a statutory trust solely for the specific purpose of paying the damages.”
It is further urged that this being a voluntary payment it may not be recovered back. There is no doubt that the courts have held that money paid to a municipality not under compulsion or duress of person or property cannot be recovered back even if paid where an act providing for the assessment was declared unconstitutional: Seely v. City of Pittsburg, 82 Pa. 360; Payne v. School District, 168 Pa. 386; Monongahela Nav. Co. v. Wood, 194 Pa. 47; Shenango Furnace Co. v. Fairfield Township, 229 Pa. 357. We think, however, these cases do not govern the one we are considering. There is an express provision in this act that the benefits shall not exceed the damages. In permitting this plaintiff to recover the amount she has paid in excess of the rightful damages of the borough we are merely carrying out the act. If we would take any other course we would be defeating the intent of the legislature as plainly expressed.
Judgment affirmed.
