City of Erie v. Piece of Land Fronting on Eighteenth Street , 171 Pa. 610 ( 1895 )

Opinion by

Mit. Justice McCollum,

The plaintiff was nonsuited in the court below on the ground that the street was not paved in compliance with the ordinance enacted by the select and common councils of the city in March, 1890, nor in accordance with the contract entered into between the city and the use plaintiff on the 14th of May of that year. The ordinance and contract referred to called for the paving of Eighteenth street from Peach street to Liberty street “ with asphalt from curb to curb.” The street between these points was of the width of thirty-two feet and the center of it was occupied by the tracks of the Erie City Passenger Railway Company, which by its contract with the city was bound to pave, repave, and keep in repair, the space between its tracks, and one foot in width outside of each rail. The space which the railway company was thus required to maintain was of the width of seven feet, and this deducted from the entire width of the street between the curbs left twenty-ñve feet of it to be maintained by the city. If the railway company neglected or refused to comply with its contract in regard to the paving, repaving, and repair of the street, the city was authorized by it to cause the required work to be done at the company’s expense. The company was also bound in paving, or repaving, to lay the same kind of pavement used in the balance of the street, unless the contracting parties should otherwise agree. After the contract was made with the use plaintiff for the construction of the pavement in question the city agreed that the railway company might pave with Medina stone so much of the street as it was bound to maintain. The use plaintiff acquiesced in this arrangement and under its contract with the city paved the balance of the street with asphalt. The work done upon the street by the railway company was such as the city might lawfully authorize under its contract with the former, and it was clearly in the interest of the owners of the abutting property as well as in the interest of the municipality because it relieved them from liability for at least seven eighths of one fourth of the cost of the entire improvement. The city could not have held the railway company responsible for any part of the cost of it without proof that the latter had neglected or refused to construct its share of it, “ after reasonable notice from the city engineer ” to do so. If this notice had not been given it was not only competent but it was entirely proper for the city to arrange with the railway company for the paving of its portion of the street in such manner and with such material as was mutually deemed fitting and satisfactory. We conclude therefore that there was nothing in the action of the city, the use plaintiff, or the railway company, in regard to the paving of the street, which can be held to exempt the abutting properties from liability for their proportion of the cost of the improvement. We think also that the city’s consent that the railway company might pave its part of the street with Medina stone was sufficiently manifested by the resolution of councils. In arriving at these conclusions we have not overlooked the cases cited to sustain the appellee’s contention nor disregarded or qualified any principle on which either of them was decided. Neither of them is applicable to the case at bar. In Western Penna. Railway Company v. City of Allegheny, 92 Pa. 100, the claim of the city embraced the cost of a wall, one half of which was built on the company’s land, and it was held that in so building it the city was a trespasser. It was also held that the wall so erected was an unlawful structure, and as the portion of it within the line of the street was not self sustaining, nor of any value to the public, the railway company was not liable to the city for any part of the cost of it. In Ferguson’s Appeal, 159 Pa. 39, the decree of the court below was reversed and the record remitted for further proceedings, on the ground that the assessment for benefits was not made in compliance with the provisions of the curative act of May 16, 1891, P. L. 71, but there was no denial of the right of the city to make an assessment in conformity with the act. In Scranton City v. Bush, 160 Pa. 499, the sufficiency of an affidavit of defense to a municipal claim was questioned, but as it was stated in it that the work on which the claim was based was not authorized by the city it was held sufficient to prevent judgment. It will be seen from this reference to the cases cited that they do not govern the ease at bar.

Judgment reversed and procedendo awarded.