Appeal of the City of Pittsburgh , 118 Pa. 458 ( 1888 )

Opinion,

Mr. Justice Williams :

This is an injunction bill, filed by owners of land fronting on Forbes street, in the city of Pittsburgh. The plaintiffs seek to restrain the collection of a municipal lien filed against them for grading, paving and curbing said street, and to secure a decree canceling the lien.

The work was done by the city under an ordinance providing for the improvement of Forbes street, which was passed in consequence of, and in conformity with, the act of April 2, 1870. This act provided for the improvement of Penn avenue and several other avenues and streets in the city of Pittsburgh, including Forbes street. The ‘ground of relief set up in the bill is, that when the ordinance was passed, and the work done for which the lien was filed, the lands of the plaintiffs fronting on Forbes street were rural in their character; and that for this reason the act of 1870, so far as it authorized the collection of the cost of the improvement by the foot-front rule, was unconstitutional under the rule laid down in Seely v. Pittsburgh, 82 Pa. 360. The master found the fact to be, that the lands were rural when the improvements were made, and he held the rule of law contended for by the plaintiff to be applicable, that the foot-front assessment of the cost of the improvement upon their lands could not be enforced. Upon these findings he recommended a decree enjoining the city against any attempt to enforce its lien, and directing its cancellation; and the court, without putting any reason for its action on the record, made the decree recommended by the master.

If the proceeding had been upon the lien we can understand how the rule in Seely v. The City of Pittsburgh, supra, could have been properly invoked, and that it would have been an answer to the city which it might not have been able to overcome. The plaintiffs, however, are not defending against an attempt to enforce the lien in a court of law, but they have come into a court of equity asking relief upon equitable principles ; and it becomes important to see in what position they stand, and what there is in the case to move the conscience of a chancellor. An examination of the bill and answer, and the testimony taken before the master, show that the work charged for in the statement on which the lien was entered was actually done by the city in front of the plaintiffs’ property, and was part of an extensive improvement on Forbes street. It also shows that the property of the plaintiffs has been greatly increased in value in consequence of the work so done. Another fact is equally evident, viz.: that the plaintiffs have strenuously resisted all efforts to collect the cost of this improvement or any part of it, and have neither contributed nor offered to contribute their equitable proportion towards it. They have waited until their lands have become practically urban, and are in demand for building purposes in consequence of the work done by the city, and now they come into a court of equity, and ask the court to enjoin the city against making any further effort to enforce its lien for the work which has brought their lands into market at greatly increased prices, and that the lien be canceled so that they may make a title to purchasers free from all future liability therefor. It is incumbent on one who seeks equity to do equity. The plaintiffs have derived great benefit from the expenditures of the city on Forbes street, for which they have paid nothing. If they have made any effort to do equity, to settle upon any fair and conscionable basis with the city, the evidence fails to disclose it. They stand, so far as the bill or the report of the master informs us, upon their strict legal rights.

It is not denied that the act of 1870 authorized the city of Pittsburgh to improve Forbes street, nor that the ordinance under which the work was done was in conformity with that act. It is not denied that the work was done in good faith and in a proper manner, nor that the lien entered against the land owners was in accordance with both the statute and the ordinance. It is not denied that the plaintiffs have been greatly benefited by the work done, nor that they have refused to pay its cost. They now come to a chancellor and ask that their lands may be relieved of lien, because the remedy which the legislature provided for securing the city for its outlay has. been held inapplicable to rural property, and cannot be enforced. Standing on this legal proposition, without the payment or offer to pay for the benefit they have received, they ask the chancellor to lay his hands on the records of a court of law and cancel a lien regularly entered therein. It may be that the rule they invoke will prevent the enforcement of the lien in the court in which it is entered. If so, a court of law will apply the rule; but we must leave them to such relief as a court of law can give, until they can present some equitable ground for our interference. It is neither against law nor good conscience for the city of Pittsburgh to seek compensation for its expenditures in grading, paving and curbing Forbes street. If it adopt an inapt or an improper method, the court in which the proceeding is undertaken will administer the law and the city must bear the consequences of its mistake. The advantages to be derived from the delay, and the possible escape from payment, which may result from the adoption of a mistaken remedy by the city, will come to the landowners. They are entitled to no more, so long as they refuse to contribute towards the expenditures of the city, which have so greatly benefited them. For these reasons,

The decree of the court below is now reversed and set aside, and it is ordered that the bill be dismissed at the costs of the appellees.