Breed v. City of Allegheny , 1877 Pa. LEXIS 239 ( 1877 )

Mr. Justice Paxson

delivered the opinion of the court, November 19th 1877.

The main question in this case is ruled by Wilson v. The City of Allegheny, 29 P. F. Smith 272, in which it was held that where an Act of Assembly authorized the city of Allegheny to lay out, widen and extend the streets of the city and to grade and pave the same, and to levy and collect the value of property taken or damages done, by assessment on the properties benefited thereby, and the city proceeded in pursuance of said act to grade a chartered toll-road within the city limits, with the consent of the corporation owning said road, that, the property abutting on it was not liable to be assessed for the cost. This was a proceeding under the same Act of Assembly to assess the damages for opening and widening the Allegheny and New Brighton Turnpike Road, called in said proceedings the “West End avenue.” No attempt appears to have been made by the city to condemn said road; on the contrary, it is .still a turnpike road on which toll is charged. It is clear the city authorities had no right to open and widen this turnpike road as one of the streets of the city. So much was decided in Wilson v. The City, supra, and it would be a work of supererogation to repeat what the present chief justice has so well said in that case.

It was alleged, however, that this defence should have been taken before the confirmation of the report of the viewers and that it cannot be made upon the scire facias. This is not so, for the reason that the city had no pow'er to assess the property of the plaintiff in error with any portion of the expense of opening the alleged street. The confirmation of the report of the viewers amounts to nothing as respects him.

From what has been said it will be apparent that the 1 st, 2d, 3d and 4th assignments of error must be sustained.

The judgment is reversed, and judgment non obstanü veredicto is ordered to be entered for the defendanl below.