Opening of C. Street, Verona Borough , 118 Pa. 171 ( 1888 )

Opinion,

Mr. Justice Williams:

This case depends on the power of the Court of Quarter Sessions to direct a review for the assessment of damages in the borough of Verona. The incorporation of this borough was not effected under the general borough law, but by a special act of assembly passed in 1871, which provided that the act of incorporation for the borough of Birmingham in the county of Allegheny, and its various supplements, should so far as applicable be extended to the borohgh of Verona. Birmingham was incorporated several years prior to the general borough law of 1834, and by a supplement to the act of incorporation passed April 8, 1848, it was provided that “the same proceedings in every respect shall be had for the view and appraisement of damages, the report thereof and confirmation of the same, as are directed by the general road laws of this commonwealth.” In 1871, when the borough of Verona was created, the directions of the general road laws in force in Birmingham became the law in Verona as to the proceedings for the view and appraisement of damages upon the opening of streets therein. What then is the rule, under the general road laws, upon this subject?

Section 25, of the act of 1836, provides that “ in all cases of views for any purpose mentioned in this act, the respective courts shall, on petition of any person interested, direct a second view or review for the same purpose; provided that application therefor be made at or before the next term of the court after the report upon the first view.” The assessment of damages sustained by the owners of lands over which a road was laid was one of the purposes mentioned in the act for which viewers were to be appointed, and the phraseology employed, viz.: “ in all cases of views for any purpose mentioned in this act,” is as comprehensive as any that could have been employed. It was held, however, in the Newville Road Case, 8 W. 172, that this provision did not authorize the appointment of a review to assess damages. The reasons given for this conclusion rest, in part, on the supposed inconvenience to result from the appoint ment of reviewers for this purpose; and, in part, upon the fact that the act of 1836 provides for the ascertainment of damages by a separate set of viewers and does not in that immediate connection provide for a review. This latter circumstance seems to have had great weight in the determination of that case. In more recent cases a different rule has been held whenever the act of assembly under consideration gave the assessment of damages and the location of the road to the same view. In Durnall’s Road, 32 Pa. 383, the local law for Chester and Lancaster counties provided that the viewers who located the road should assess the damages, and this court held that a review upon the subject of damages was regular. Lowbie, C. J., who delivered the opinion of the court, said: “ Objections either to the road itself or to the damages found may be a ground of review or re-review.” The same rule .was held in Road in Chartiers Township, 34 Pa. 413, in which Durnall’s Road was cited and approved. If then the Newville Road case was authority for the proposition that a review could not be granted where the assessment was committed to a distinct view, the cases in 32 and 34 Pa. are authority for holding that a review ■is regular when the same view is charged with both duties.

By the act of May 14,1874, P. L. 164, the general road laws were changed in this particular, and since that date the viewers appointed to lay out the road are required to assess the damages and their report covers both subjects. The statutory provision under which Durnall’s Road was decided is now part of the general road laws of the commonwealth and therefore the law of Verona borough. The only ground for a distinction lies in this, that, in boroughs, streets are laid out by the action of the town council and are under the general road law only for the assessment of damages. But there can be no doubt that the petitioners in this case would be entitled to a review if the road were in a township, by reason of the change in the general road laws referred to. What is there to justify the denial to a citizen of a borough of the right to a review which his neighbor living over the borough hue would be clearly entitled to, while the damages in both cases are assessed under the general road laws? We are unable to see any good reason for such a holding and accordingly hold the rule to be that assessments of damages made under the general road laws are subject to review in the same manner and to the same extent in boroughs where the general road laws prevail, as in townships.

The order of the court below is therefore affirmed.