Black Street , 236 Pa. 395 ( 1912 )

Opinion by

Mr. Justice Beown,

The ordinance assailed by the appellants is not for the vacation of Black street. It merely repeals the ordinance of July 13, 1908, directing the opening of that street, which for many years had been a located, but unopened, highway of the city of Pittsburgh on what was known as the “East Liberty Plan.” The ordinance of April 15, 1910, repealing the opening ordinance, was passed in pursuance of the provisions of the Act of May 16, 1891, P. L. 75, and all of the objections to the validity of its passage are clearly and correctly answered in the opinion of the learned judge of the court below refusing to vacate the order quashing the proceedings before the board of viewers.

The contention that the repealing ordinance is not effective as to the property belonging to the estate of Catherine R. Negley, deceased, because, at the time it was passed, the city had entered upon that property and treated Black street as one of its highways, involves a question of fact which the court below found adversely to the appellants. The finding is as follows: “In the improvement, the grading and curbing and paving of streets, which cross the line of the located Black street, turnouts were made in the paved streets at places where they crossed the located Black street. But on none of these streets did the city go beyond the line of the cross street which it was improving. It could not be said to have entered upon Black street, because, although there is a turnout which indicated that there was or was to be a street at each of these places yet the entire improvement at this place was within the line of the several cross streets which it was improving at the time. It would be an undue stretching of the situation to say that this was an entry upon Black street and treating that as a public highway by the city.” This finding has not been assigned as error, and we cannot, therefore, disturb it; but, even if it had been so assigned, we could not overrule it, for the testimony of J. S. Fullerton, called as a witness by the appellants, was sufficient to sustain it. On cross-examination, he testified as follows: “Q. Outside of Boreland street, which is shown on this plan, none of the curbs extend into the part covered by Black street? A. They extend to the property line, yes sir. Q. They don’t extend beyond the line of the cross streets which are shown upon the plan? A. No, sir; the location is within a tenth or so. Q. At the end of Boreland street you say the curb is extended into Black street? A. Yes, sir. Q. And that is the only one of these streets where the street improvements extend to any extent whatsoever upon the property covered by what is known as Black street? A. Yes, sir.”

Both assignments of error are dismissed and the order of the court below is affirmed, at appellants’ costs.