Scranton v. Beckett's Estate , 1901 Pa. Super. LEXIS 306 ( 1901 )

Opinion by

W. D. Porter, J.,

The councils of the city of Scranton, in the exercise of the discretion with which they were invested by the Act of May 23, 1889, P. L. 312, ordained that the cost of this lateral sewer should be assessed according to the foot-front rule. The act of assembly which authorized this assessment provides that “ the cost of lateral sewers shall be assessed upon the lots or lands through which such lateral sewers run, according to the valuation of such lots or lands as aforesaid, or in proportion to the benefits upon lands benefited, or by an equal assessment by the foot-front rule upon the lands along or through which such sewers run, as councils may determine.” Certain classes of property, such as public parks, are exempt from assessments of this character; but under the terms of the act, all properties ■\yhich are assessable are to be-assessed according to the same rule. When any of the lots which are the property of private owners are ,so situated that they will not receive any special benefit from the sewer, then it is incumbent upon the councils to consider that fact in determining the rule of assessment that shall be applied. When because of the difference in situation, extent, or means of access to other systems of drainage, the lots abutting upon the improvement cannot reasonably be assumed to be benefited according to frontage, that is a sound argument against the adoption of the foot-front rule. When the property through which the improvement runs is rural in character, so that it would be inequitable to make the assessment wholly dependent upon frontage,- the application of the rule cannot be sustained.

These considerations go to the validity of the application of the foot-front rule, but they do not change the manner in which the foot-front rule shall be enforced in those cases where it is sustainable. The affidavit of defense in this case does not deny liability upon the ground that some public property, exempt because of its character, has not been assessed, but it specifically avers that the whole cost for so much of the sewer as is north of Vine street has been assessed against the lots of the defendant, situate on the southeast side of Stipp Court, and that no part of the cost of the sewer has been assessed upon the property of private owners situate on the other side of Stipp Court and directly abutting upon the sewer. If this is true the assessment was not made in accordance with the terms of the ordinance by which it was authorized. The argument, made on behalf of the city, that this affidavit is insufficient because it does not set forth the nature of the land omitted from the assessment, and the assertion contained in the paper-book of the appellant that the reason why this property was not assessed was that it had already been assessed for the main sewer on another street, are without force. If the property on the other street had been assessed for another sewer, and the situation was such as to destroy all uniformity among the properties along the line of the present improvement, it may be that the foot-front rule as applied to these different classes of property was invalid, because of such lack of uniformity; but when the city attempts to enforce that rule it has no power to blend it with any other manner of assessment. The property of the defendant cannot be assessed for a greater portion of the cost of this sewer than its frontage upon the improvement bears to the total frontage of the lots of private owners thereon, if the assessment is made according to the foot-front rule. We must accept the allegations of the affidavit of defense as true, and it sufficiently alleges that this assessment was not properly made.

Appeal dismissed at cost of appellant without prejudice. .