Philadelphia v. Snedaker , 1918 Pa. Super. LEXIS 26 ( 1918 )

Opinion by

Trexler, J.,

The City of Philadelphia on May 25, 1908, filed a lien for the cost of laying water pipes in Schiller street. Afterwards, in 1911, at the instance of the defendant, the portion of Schiller street in which the pipes had been laid was vacated, the defendant agreeing to file no claim for damages by reason of said vacation. Suit was brought and judgment was entered upon the lien and the present proceedings come to us upon a petition to open judgment. The reasons alleged in support of the petition were, (1) That in order to sustain the lien it must be shown that some special benefit accrued to the property by reason of the work. The foot-front rule assessment has been repeatedly sustained by our courts. That there may be cases of apparent individual hardship arising does not condemn the rule. Tt is a species of taxation and is presumed to be for the benefit of the taxpayer or of his property: Michener v. City of Philadelphia, 118 Pa. 535; Harrisburg v. Mcr Cormick, 129 Pa. 213; Philadelphia v. Bilyeu, 47 Pa. Superior Ct. 148; McKeesport Boro. v. Busch, 186 Pa. 46. The appellant, however, contends this has been changed by the Act of June 4, 1901, P. L. 364, Section 4, of which provides that the lien for laying water pipes and various other improvements “shall exist in favor of, and the claim therefor may be filed against the property benefited thereby, and in favor of the city, county or borough extending the benefit.” We do not read the sentence above quoted as requiring proof of special benefit to the property against which the lien is filed before there can be a recovery. It was said in Michener v. Philadelphia, supra, “It would be intolerable if in every instance of special taxation the question of benefit could be thrown into the jury box.” When the legislature used the word “benefit” there was no particular reference made to the foot-front rule, nor was there any thought expressed looking to its change. The property benefited is evidently such property as abuts on the street improved and which is affected by the improvement and which, as was declared in the decisions prior to the act, is presumed to be benefited by it.

(2) The second position assumed by the appellant is that the city, by vacating the street, lost its right to claim for the water pipes. It appears in the case that the street was dedicated and accepted by the city, that its boundaries were delimited, that the city exercised dominion over it and the defendant recognized it as an existing street, and petitioned for its vacation; that the street was not maintained on its proper grade and was allowed to become a dumping place for ashes and other materials, does not affect the question. The court having found that the street was legally opened and that it was afterwards vacated, does not prevent the city from recovering on the lien filed for the cost of the water main. The assessability of property is determined as of the time when the work was done: Allegheny City v. King, 18 Pa. Superior Ct. 182. The argument that there being-no longer any street there is no more use for the pipes, loses its force for the reason that the situation is one of the defendant’s own making, as the street was vacáted at his request. This is an appeal to the equitable powers of the court, and the defendant cannot allege a wrong arising from a situation in the creation of which he was the actor.

(3) The appellant contends that the writ of scire facias was not served properly. An examination of the records shows that the sheriff followed the directions of the Act of May 6, 1909, P. L. 452. That an inspector of the city five years before; had knowledge of the residence of the owner is not sufficient to in any way impair the return of the sheriff, which is to the effect that in 1913 he could not find the defendant.

The order of the court is affirmed.