Canton Borough v. Williams , 1917 Pa. Super. LEXIS 378 ( 1917 )

Opinion by

Porter, J.,

This is an action to recover for the construction of a sidewalk or footwalk in front of the property of the defendant, which she, after notice, had failed to construct. The defendant raised every possible objection to the payment of this claim, contending, among other things, that the street upon which the walk was laid was not a public highway. The trial resulted in a verdict and judgment in favor of the plaintiff, from which we have this appeal.

There was nothing in the evidence, at the trial, from which a jury should have been permitted to infer that the ancient road which existed prior to the incorporation of the borough had been laid out by public authority, nor that it had been formally dedicated to public use by the laying out of a plan and the sale of lots by the owners of the property over which it was located, nor that the council of the borough had ever taken any legal action to widen or straighten the old road. The evidence produced by the borough and by the defendant did, however, conclusively establish that the road had been used as a public highway long before the incorporation of the borough and that subsequently to that incorporation the road had been maintained by the borough authorities as a public highway. About thirty years ago- the county had erected a county bridge across Towanda creek, which flowed across the old road, thus replacing an old bridge which may have been erected by some township, but the history of which seems to have been lost in obscurity. The borough had for thirty years maintained a footwalk, constructed of planking nailed to stringers along the east side of the street, which footwalk curved slightly to the westward as it approached the county bridge and connected with the footwalk provided for pedestrians on the eastern side of that bridge. These facts being on all hands admitted to be true there can be no question that the road, which is now called Sullivan street, was a public highway, over which the borough authorities had jurisdiction. It was, however, a highway, the rights of the public in which were founded only upon prescription and was confined to the limits established by the public use. There is no presumption that such a' road is of uniform width or that it is straight; if the municipal authorities desire to widen or straighten it they must do so by a valid ordinance, in the manner directed by law, so that the owners of property taken or injured by the proceeding may receive compensation. There was no evidence in this case from which a jury should have been permitted to infer that the highway, at any part thereof, extended over land to the eastward of the eastern line of the old sidewalk, as it had been maintained by the borough for thirty years. It is true that one witness testified that there had at one time, prior to the erection of the county bridge, existed a footbridge, distinct from the old bridge over which the road passed, which was in a straight line with the main parts of the sidewalk upon the eastern side of the road, but the 'witness did not pretend to say how long that footbridge had continued in existence. That footbridge ceased to exist at least thirty years ago and it would have been manifestly improper to permit a jury to find, upon such evidence, that the public had acquired a prescriptive right to a highway over the land between the old road and the ends of the footbridge; This disposes of the contention of the defendant that her lands did not abut upon the sidewalk; there can be no question that she has the exclusive right to the use of her lands up to the eastern line of this sidewalk. The eastern line of the present sidewalk is upon the exact location of the line of the old sidewalk.

The contention of the appellant that she cannot be required to pay for the cost of laying this sidewalk, for thé reason that her property is farm land, capable of being used only as a pasture, is not well founded. The question whether this was such farm land as not to be properly eluded within the borough limits is one which ought have been settled at the time of the incorporation of the borough. The predecessors in title of this defendant per-' mitted this land to be included within the borough limits, and the land is subject to the jurisdiction conferred by the statutes upon the authorities of the borough. Assessments for the construction and maintenance óf sidewalks involve an exercise of the police power, not of the taxing power;' it is, therefore, immaterial whether the property is rural or urban and the municipality is not required to establish that the property of the defendant was peculiarly benefited by the improvement; Philadelphia v. Weaver, 14 Pa. Superior Ct. 293; Pittsburgh v. Biggert, 23 Pa. Superior Ct. 541, and cases there cited. The statutes which confer upon boroughs jurisdiction to require property owners to construct, maintain and repair sidewalks have been reviewed and commented upon in Smith v. Kingston Borough, 120 Pa. 357; Steelton Borough v. Booser, 162 Pa. 630; Angle v. Stroudsburg Borough, 29 Pa. Superior Ot. 601, and it is not necessary that we discuss at length the provisions of those statutes. The power to regulate sidewalks and require them to be paved and kept in repair is expressly conferred by the statutes. Whether sidewalks shall be maintained upon any street, or part thereof, is a question for the municipal authorities to determine. When the legislature in terms confers upon a municipal corporation the power to pass ordinances of a specific and defined character, an ordinance passed pursuant thereto cannot be impeached as invalid because it would have been regarded as unreasonable if passed under the incidental power of the corporation, or under a grant of power general in its nature. In other words, what the legislature distinctly says may be done, cannot be set aside by the courts because they deem it to be unreasonable or against sound policy: Ligonier Valley Railroad Co. v. Latrobe Borough, 216 Pa. 221; Mahanoy City Borough v. Hersker, 40 Pa. Superior Ct. 50. The borough had jurisdiction to require the sidewalk in question to be maintained and kept in repair by this defendant.

We come now to the question whether the borough, under, the facts of this case, properly exercised the power which it possessed. The evidence clearly established that this was not a case of original construction of a sidewalk upon a street. The defendant was cleárly correct when she said in her affidavit of defense “that the Borough of Canton did repair or reconstruct two' separate pieces of side- or footwalk along the eastern -portion of Sullivan street as set forth in the plaintiff’s statement, but states that said walk so alleged to have been by the borough constructed was simply a repair or reconstruction of the said side- or footwalk which the Borough of Canton had previously constructed and was already maintaining.” The sidewalk was laid upon the exact location of a sidewalk which had been continuously maintained for a .period of over thirty years. This being the case it is not necessary to discuss the contention of the defendant that the ordinance of September 17, 1908, referring to this particular sidewalk was invalid, nor whether it was properly authenticated upon the ordinance book of the borough. If that ordinance was valid the liability of the defendant cannot be questioned. If that ordinance was invalid, then the ordinance of March 20, 1894, the validity of which is not questioned, which ordained general regulations with regard to sidewalks in the borough, is clearly applicable. The third section of that ordinance provided that: “All persons within this borough having-sidewalks in front of their premises shall be required to keep the same in good repair, and all persons who shall neglect to repair their sidewalks as aforesaid, shall be notified by the street commissioner to repair the same immediately, and if after five days from the time of such notice such walk is not properly repaired, then it shall be the duty of the street commissioner to repair the same, charging said party the cost of such repair.” The property of the defendant had a sidewalk in front thereof and came directly within the terms of this ordinance. It was the duty of the defendant to keep that sidewalk in repair. It was an undisputed fact in this case that the old sidewalk was so rotten, decayed and .dangerous that an entire new sidewalk was absolutely necessary for the protection of pedestrians against injury. The street commissioner would have been guilty of a breach of duty if he had not required the entire sidewalk to be reconstructed. That the officers of the borough, in the discharge of their ministerial functions, had neglected their duty to require this defendant to keep the sidewalk in repair, did not relieve her from the discharge of her duty, imposed by the ordinance, when she was notified to perform.

The defendant contends that the notice which she received was insufficient, that it was impossible for her to have the sidewalk reconstructed within five days. The statutes require notice, but they do not fix the period of notice: Angle v. Stroudsburg Borough, supra; Smith v. Kingston Borough, 120 Pa. 357. The general regulations of this borough, contained in the provisions of the ordinance above quoted, require notice of five days, to an owner who is called upon to repair or reconstruct a sidewalk, and such was the notice given in this case. There is nothing, therefore, in the statutes or the ordinances of the borough which expressly requires that the notice be for a greater period than that which was afforded in this case. The purpose of notice is to give the owner an opportunity to do the work himself, or to have it done upon terms most advantageous to him. The contention of the defendant is that five days, the period during which she was required to reconstruct her pavement, did not give her sufficient time within which to do the work, that the time given was not reasonable. The difficulty which the defendant encounters upon this point is that the evidence conclusively establishes that her failure to perform her duty, to repair the sidewalk, was not because the time allowed by the ordinance was insufficient. The, defendant, herself, testified that she had sent notice by her husband to the borough officials that she would not build this walk because her property was farm land and, unsuitable for building purposes. She testified that she had acquired title to the property a short time before the notice was served, and her entire testimony renders it too clear for argument that the noticé which she sent to the borough council referred to any time‘other than that at which she had been served with notice to repair the sidewalk. When she thus sent word to the borough council, which in this matter was discharging merely a ministerial function, and stated her reason for not building the sidewalk, it was her duty, if she considered the period of time allowed her to do the work insufficient, to so distinctly state. Having thus placed herself in a position where it was her duty to speak, she must be held to have waived any objection that the time allowed her to construct the sidewalk was insufficient.

The contention of the appellant that the borough ought to have first established a grade at which the sidewalk was to be laid is without merit. The borough had not established a paper grade for the street, and, this being the case, the duty of the defendant was to construct the sidewalk at the then existing grade of the old sidewalk. The borough reconstructed the sidewalk upon the then existing grade, and is not here asking the defendant to pay for grading. The specifications of error are dismissed.

The judgment is affirmed.