41 Pa. Super. 194 | Pa. Super. Ct. | 1909
Opinion by
The court below discharged a rule for judgment for want of a
The allegation of the affidavit that “ said pavement is not upon the property of the said Mary J. Beitzel, but the said pavement is constructed upon the property of the City of York,” is immaterial. ' The property which directly abuts upon a public street is, under our statutes, subject to the charge for the construction and maintenance of the sidewalk directly in front thereof, without regard to whether the owner of that property is also possessed of the fee in the land over which the street is located. The presumption is, in the absence of evidence to the contrary, that the owner of the abutting land is possessed of the fee in the land to the middle of the street in front, but it is the abutting land which is liable for the maintenance of the sidewalk
The following allegation of the affidavit of defense: “That the city councils of the City of York, by ordinance regularly adopted on the 16th day of October, 1889, and recorded in city ordinance book docket A page 172, adopted Belvedere Avenue from Market Street southward to College Avenue at a uniform width of 60 feet and that from said Market Street to Salem Avenue the said City of York has opened the said Belvedere Avenue for a uniform width of 60 feet and required the laying of pavements and sidewalks for the said width. That the said pavement for which a lien has been filed in the above named case is laid 20 feet westward of the alignment of said Belvedere Avenue as adopted and laid out by said City of York under said ordinance adopted and approved the 16th day of October, 1889,” does not aver that the property in question abuts upon that part of Belvedere avenue to which the ordinance recited applies. This allegation of the affidavit does, in effect, state that from Market street southward to Salem avenue Belvedere avenue has been opened of a uniform width of sixty feet, but the property of. defendant is on the south side of Salem avenue and does not abut upon that part of Belvedere avenue which is alleged to have been actually widened to sixty feet. If it be assumed that College avenue is south of Salem avenue, then the property does not abut upon that part of Belvedere avenue which is alleged to have been actually widened. The affidavit does not deny that the part of Belvedere avenue upon which the sidewalk in question was laid was a public highway, actually opened and used as such. Even if it be assumed, therefore, that the property in question abuts upon that part of Belvedere avenue referred to by the ordinance of October 16, 1889, the utmost that can be claimed for this affidavit is that
The allegation that the sidewalk was not “constructed according to the ordinance of the City of York or any ordinance, and the said pavements so constructed on both Salem Avenue and Belvedere Avenue are not constructed according to the grade and alignment adopted by the said City of York, and therefore the said Mary J. Beitzel, the abutting property owner, is not liable therefor,” is entirely insufficient. The affidavit does not deny that the ordinance recited in the claim filed by the city authorized the city to construct sidewalks on Salem avenue and Belvedere avenue at the expense of the defendant. The allegation just quoted manifestly refers, only, to the physical construction of- the pavement; it does not state whether the city had adopted a grade and caused the street to be actually graded, nor does it state how the pavement was laid with regard to the natural grade. It avers that the pavement was not constructed according to the ordinance, but it fails to state in what respect the construction departed from the provisions
The final averment of the affidavit that there can be no recovery because the claim is “not apportioned to the several pavements and the said streets as is necessary for the collection,” is without merit. The affidavit does not allege that the land against which the claim is filed is not a single property. The claim shows that this was a property located on the corner of two streets, and it was proper for the city authorities to require that the entire sidewalk, upon both the streets on which the property directly abutted, should be put into proper condition at the same time; it certainly would be no advantage to the defendant to have this single claim divided, thus subjecting her to the cost of two proceedings. If for any reason it is made to appear that this claim should be apportioned between different parts of the property, the fourteenth section of the act of June 4,1901, affords the defendant a complete remedy. The affidavit of defense was insufficient to prevent judgment.
The order of the court below is reversed and the record is remitted to the court below, with direction to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court below why such judgment should not be so entered.