Philadelphia v. Nock , 1899 Pa. Super. LEXIS 203 ( 1899 )

Opinion by

William W. Poster, J.,

According to the case stated, on June 22, 1893, the petition -for the appointment of viewers was presented. On October 25, 1894, the report of the jury was filed assessing the land de.scribed, $300 for benefits arising from the construction of Mill Creek sewer. On May 24,1895, the report was confirmed by the court. On November 23, 1895, the claim was filed in this case. On March 22,1894, the land was conveyed by Nock to WilliamA.Arthur, who, on the same day, .divided.the tract-into forty separate lots, and conveyed them separately to Camp^. bell, reserving ground rents. Campbell on the same day conveyed the lots to James Arthur. All of -these deeds were-recorded on March 22,1894, and the division into lots subsequently appeared upon the books of the survey department of the city. Since then there have been some conveyances of the-said lots.

These dates are important in that they show that at the inception of the proceedings before the viewers, the land was, an undivided tract abutting upon the sewer, and that, at the -time-the conveyances were executed, splitting the tract up,- the report of the jury had not been filed.

The contention of the appellant is that the finding of the-jury of view is conclusive upon the defendants- in this proceeding on the lien, filed pursuant to the confirmed report. In Pittsburg v. Cluley, 74 Pa. 262, Mr. Justice Williams makes-clear the effect to be given to the report of a jury of view. He say: “ The confirmation of the report has all the legal effects- and incidents of a judgment or a decree of a court of competent jurisdiction, one of which is, that it must be treated as valid and binding until reversed or set aside, and cannot be assailed except for fraud or collusion .... The defendant-had notice of the proceedings and did not appeal to the councils or apply to the court of quarter sessions, to have the assessment set aside or abated on the ground that it was inequitable or unjust. . . . The confirmation of the report must be regarded as conclusive of the assessment.” See also Railroad Company v. City of Allegheny, 2 W. N. C. 229. The court-below filed no opinion. We are thus not, informed as to the ground upon which they entered judgment for the defendant. From the appellee’s argument it appears that he seeks to sustain the judgment on the ground, first, that the lands of the defendants since the division of-the tract into separate lots,_are_ not property abutting upon the sewer improvement; _ are notL specially benefited, and therefore that the jury of .view were without jurisdiction to assess. When the proceedings before the jury were commenced, and for a part of the time that they were pending, the tract of land against which the lien is filed was abutting upon the sewer and liable to assessment. The fact that it was benefited has been finally determined by the report of the jury as confirmed. The doctrine asserted in Morewood Avenue, 159 Pa. 20, is that, “ Assessment for benefits to pay for public improvements can only be defended upon the ground that the benefits are local and essentially peculiar to the very property assessed, and then it can only be done once. This can only be the case where the property assessed abuts directly upon the line of the improvement.” “More-wood Avenue,” as was said in Re Orkney Street, 9 Pa. Superior Ct. 614, “ has been followed and the principle upon which it was decided, applied to sewer assessments, notwithstanding the argument, that a public sewer is a special benefit to all the properties situated in the same watershed?’ See cases cited. By the division of the original tract some of the lots created became nonabutting. Does this relieve them from bearing their share of the assessment? We think not. The proceeding was to charge the tract as it abutted when the work was done, and the benefits accrued. When the division was made, had the lots remained in the same owner without marks of subdivision upon the ground, they would not have escaped liability, even though the division had been noted upon the city registry: Chester v. Eyre, 181 Pa. 642. When the title to the lots passed to others, they took with record notice of lis pendens and subject to contribution to the total benefit assessed. If the new owner had defense to make by reason of the severance of his lot from the main tract, it was his duty to intervene in the proceeding pending or be barred by the report when confirmed. See Hershey v. Turbett, 27 Pa. 418, 428. True there remained to such an one or to any property owner whose land is assessed for benefits, the right to defend against the lien on the ground of want of authority for the original proceeding: Breed v. Allegheny, 85 Pa. 214. Here, however, the only ground for such a defense is that the defendant’s lots were nonabutting and therefore nonassessable. To this we answer, the lots were parts of the whole tract which abutted, and, so far as the proceedings to assess benefits are concerned, they remained so. If then they are parts of the abutting tract they are assessable and the plea of want of jurisdiction falls.

The appellee urges further that the lien itself is defective because, it is filed, against .one tract instead, of against forty lots in the names of several persons..^..

The lien as filed conforms to the assessment as made by the jury. The assessment was against the abutting tract as it stood when to it accrued the benefits found by the jury. To require the city solicitor in such a case to apportion the lien among the several holders of portions of the tract would be. imposing duties beyond his powers. The adjustment of proportions would be a determination by him of thea’ights of contribution among fheseveral owners. This, would lead to endlegs disputes,and inequitable results. It would be in effect the assumption by the city’s law officer of judicial powers with which he is not clothed.

Again it is said that the sewer constructed was larger than was required for the use of adjacent property, and was in fact a section of a large public improvement. From this it is argued that the lien is invalid. There are cases (as Park Avenue Sewer, 169 Pa. 433) which hold that the abutting .owner, cannot be assessed for the whole cost of a main sewer intended to. drain lands further removed from the point of discharge, and tfiat such an ownerIs'liable'only for.such.proportion of the.cost.as would pay for a branch sewer sufficient to,.give.the benefits of gewerage to his property. This, however, has been held in cases of appeal or exceptions to the report of the jury of view.'. After the report has been confirmed, such a readjustment of amounts, if entered upon in a defense to the lien, would be in disregard of the effect to be given to the record of the confirmeds report of the jurjr of view.

This is an answer to the appellee’s argument, but it may not be amiss to add that the amount of the assessment would seem to indicate that the jury of view had in contemplation the standard of obligation contended for by the appellee.

It is further urged that some of the lots of the defendants front on other streets; that upon these streets sewers have been constructed and paid for by the defendants; that these sewers sufficiently drain the defendants’ lots and that the defendants therefore should not be required to pay the present assessment. This position is not tenable. If, as we have shown, the land is liable for the assessment, the fact that other and adequate sewers have been constructed on other streets and have been paid for, does not relieve: Michener v. Phila., 118 Pa. 535.

The judgment of the court below is reversed and judgment is now entered for the plaintiff for $300 with interest from November 23, 1895, in accordance with the terms of the case stated.