West Liberty Avenue Sewer , 1913 Pa. Super. LEXIS 49 ( 1913 )

Opinion by

Porter, J.,

The city having under the provisions of a single ordinance constructed a main sewer in West liberty avenue, with branch sewers on Brookline boulevard, Willison avenue, Brew avenue, Boyer avenue, Penn alley, Woodward avenue, and Templeton avenue, after the completion of the work petitioned the court below for the appointment of viewers to ascertain the costs, damages and expenses and assess the benefits by reason of said improvement, subject to the provisions of the Act of May 16, 1891, P. L. 75, and the supplements and amendments thereof. The viewers were appointed and the report which they subsequently filed discloses that they proceeded in strict compliance with the provisions of the statutes. The report found that no property had ■been damaged by the execution of the work and that the cost and expenses of the several sewers had been $25,825.17 of which amount $1,971.32 was assessed against the city, "being the difference between the total amount of cost and expenses of said improvement and the total amount of special or peculiar benefits.” The appellants, being the owners of several lots of ground which were assessed for benefits by the report, filed exceptions, which after argument the court below dismissed, and confirmed the report of viewers.

The properties owned by the appellants consisted of a number of separate and distinct lots, all in one general plan, some of which lots fronted upon the main sewer on West liberty avenue and others abutted upon the branch sewers laid in the streets of the plan. The exceptions to the report of viewers, the dismissal'of which is made the subject of the several specifications.of error, raised only a question of fact, did the aggregate of the assessment of

benefits against the property abutting on each of the sewers exceed the cost of construction of that sewer? The dismissal of the exceptions was an adjudication of that question of fact against The contention of the appellants: Winton Borough’s Sewer, 46 Pa. Superior Ct. 502. After the order of final confirmation this appeal was taken. There is no bill of exceptions to the admission or rejection of evidence, for the appellants did not make any offer of evidence. There is nothing before us, therefore, but the record. Looking at the record we find a proper petition for the appointment of viewers, the order appointing them, their report, and the order of confirmation. The report shows that the proceedings before the viewers were entirely regular, the viewers heard all parties who desired to be heard, they gave all parties including these appellants notice of their preliminary assessment. These appellants appeared before the viewers and filed with the viewers exceptions to the assessment, which merely asserted that the assessment “is excessive and beyond the actual cost of the sewers laid or required on said streets.” The viewers, on August 28, 1912, heard the appellants on the exceptions so filed, and, on September 18, 1912, overruled the exceptions, and subsequently filed the report. What evidence) was before the viewers we do not know, for the evidenced cannot become a part of the record, except it' be brought^ on by a bill of exceptions. For anything that appears^ on this record the viewers may have heard evidence, concluded that the cost of each branch sewer exceeded the aggregate amount of the assessment of benefits against property thereon abutting, and made their report from a thorough investigation such as the law requires them to make: Twenty-Eighth Street Sewer, 158 Pa. 464. The duty of the court below was to review the report on the exceptions filed, and not to proceed de novo and consider all the testimony which had been produced before the viewers, and make a new award. Every presumption is in favor of the award, and unless errors in proceedings or findings are pointed out the report should be confirmed: Pittsburg’s Petition, 179 Pa. 630. The findings of viewers on questions of fact, approved by the court, should not be disturbed except for clear error: Amberson Avenue, 179 Pa 634. Where a viewers’ report shows that assessments for a sewer were based on the special benefits to the several properties, and there is nothing in the record from which the appellate court could find that the assessment exceeded the proper limits, the order confirming the report will not be reversed: Murtland Street Sewer, 226 Pa. 478.

The report in the present case certainly does not indicate that the city has been permitted to make a profit out of this improvement, for the viewers have assessed almost $2,000 of the actual cost of the sewer system against the city. This was probably due to the fact that there was a fifteen-inch sewer on West Liberty avenue, and ten-inch sewers on Brookline boulevard and Boyer avenue, the increased size of these sewers being due to the fact that the branch eight-inch sewers upon which some of the lots owned by appellants abutted had to have an outlet through these larger sewers, and the viewers may have considered it inequitable to assess the properties upon the streets where the larger sewers were located for more than the amount of the cost of a sewer sufficient to give the property on that street all the benefit it derived from the main sewer. A property owner cannot be assessed with the cost of a fifteen-inch main sewer where it appears that a ten-inch local sewer would have been sufficient to give the property all the benefit it derives from the main sewer: Park Avenue Sewers, Appeal of Parker, 169 Pa. 433. We cannot, therefore, assume that the viewers made a mistake when they refused to assess the property on West Liberty avenue at a higher rate than they assessed the property which abutted on the eight-inch branch sewers. The allegation of the appellants that the assessment of benefits against properties fronting on each side of Willison avenue is shown by the report to be excessive, as compared with the assessments upon other branch sewers, is not well founded. The branch sewer in question was not all located in Willison avenue, it extended for one full square of its length along Frew avenue, from Willison avenue to Brookline boulevard; it was necessary that it should do so in order to have an outlet. A sewer is not necessarily all located in one street; it may extend through two or more streets and through private property, and still, in its entirety, constitute but one sewer: Grant Street, 17 Pa. Superior Ct. 459. The property on each side of Willison avenue was assessed, but no assessment was made, for this particular sewer, against the property on Frew avenue between Willison avenue and Brookline boulevard. The reason for this is apparent on the face of the report, and the accompanying map. The properties on The north side of Frew avenue, owing to the conformation of the ground, could not connect with the sewer in that avenue, and they were in this very proceeding assessed for the construction of the branch sewer in Woodward .avenue. The property on the south side of Frew avenue at this point consisted of the sides of two lots, one of which was in this proceeding assessed for the construction of the sewer in Brookline boulevard and the other lot was assessed upon the basis of the benefits which it received from its frontage on Willison avenue. We find nothing in the record from which we can determine that the assessments exceeded the proper limits. The specifications of error are overruled.

The order is affirmed, and the appeal dismissed at costs of the appellants.