Philadelphia City v. Dungan , 1889 Pa. LEXIS 1002 ( 1889 )

Opinion,

Mr. Chief Justice Paxson:

There was a writ of error and an appeal in each of these cases. We are asked to quash the writ of error upon the ground that the plaintiff is not entitled to both remedies. The reason, is good; the error is in its application. The writ of error is the appropriate remedy: the appeal was improvidently taken and will be quashed.

The claim was filed by the board of health for the cost of abating a nuisance. It designates Craven & Son as owners or reputed owners, and Samuel H. Dungan as registered owner. In the body of the claim it is averred that due notice was given “ to the said Craven & Son, owners or reputed owners, to remove said nuisance,” and that upon their non-compliance with said request the city proceeded to remove said nuisance, etc. This ayerment excludes any allegation that notice was given to the registered owner, and for this reason we regard the claim as fatally defective. It was said by this court in Connellsville Borough v. Gilmore, 15 W. N. 348, which was also a claim filed for removing a nuisance, that “ a municipal claim being the creature of statute, and unknown to the common law, must conform to the law of its creation. This claim is radically defective. The act of 1851 only empowers the borough to file such a claim after the default of the owner or occupier to remove the obstruction, and after a demand upon him by the borough authorities to do so. Such demand being a prerequisite, should have been averred in the claim.”

•Every word of this is applicable to the case in hand. In the city of Philadelphia, since the passage of the registry act, where notice is required to be given to the owner, it must be given to the registered owner, if there be one. The object of the notice is to enable the owner to remove the nuisance, and thus avoid the increased expense of having it done by the city. The object of the registry act was twofold, (a) to enable the city to designate the true owner with reasonable certainty, and (5) to provide for actual notice to such owmer of municipal claims affecting his property. It is not enough to give notice to a reputed owner, who is often a vicarious John Doe or Richard Roe, and then after the work has been done by the city, and perhaps large additional costs have been incurred, insert the name of the registered owner in the claim filed. It is as easy to ascertain the name of the registered owner when the notice is to be given as when the claim is filed. The foregoing views are sustained by abundant authority. It is sufficient to refer to Simons v. Kern, 92 Pa. 455; Gans v. The City, 102 Pa. 97. We have made similar rulings in the western district, not yet reported.^*

It is true the point decided in the cases cited was that the sale of the property of a registered owner without notice to him was void, and from this it may bo inferred that it is sufficient to name him in the claim and serve him in the manner required by the act of assembly. This may be so in some instances, but where a previous notice is required to be given to the owner, as in the case of the removal of a nuisance, and the city has no right to charge him with the cost of such removal, except after his neglect to do so, it comes clearly within the reason of the cases cited to hold that the notice must be given to the registered owner, if there be one. As was said by our late colleague, Mr. Justice Tkunkey, in Gans v. The'City, supra, “ notice to the owner being a prerequisite, the claim should be filed against the property in the name of the person upon whom the notice was served. The law requires the return and registry of the owners of every lot of ground upon the plans of the city, and if so registered, the lot shall not be sold for taxes or other municipal claims, except in the name of the owner as returned. Although the proceeding is in rem, it is contemplated that the owner’s name shall appear in the claim and proceedings thereon.” This means all the proceedings, as well those which occur at the incipieney of the claim, as those which relate to its enforcement. The necessity of notice to the owner to remove a nuisance is conceded, and the authorities cited show that a sale without notice of the claim is forbidden by law and is absolutely void.

It was urged on behalf of the city that inasmuch as the claim is silent as to when Mr. Dungan became registered owner, there is no presumption that he was such at the time the notice was given. We do not see the force of this. We think there is such a presumption; at any rate, the city is bound to put on record every averment necessary to sustain its claim, and if Mr. Dungan’s deed was not registered at that time it was very easy to have said so.

The judgment is affirmed in each case upon the writ of error. The appeal in each case is quashed at the costs of the appellant.

* Perhaps in Ferguson v. Quinn, 123 Pa. 337.