Alcorn v. City of Philadelphia

Mr. Justice Trunkey

delivered the opinion of the court, April 12th, 1886.

William W. Alcorn and others, owners of properties situate on Broad street, between Federal street and Passyunk avenue, prayed the councils of the city to cause the paving of the middle of the street, the part which had never been paved and had been used as a boulevard or drive, with. Belgian blocks ; and represented that said part was a nuisance, the dust there*from in the summer time being intolerable to the residents on either side, and at other seasons said part was almost impassable on account of mud. Thereupon, it seems, an ordinance was passed providing for the paving of said central part of the street, the cost to be paid by the owners of the properties fronting on the street. The claim in this action is for the amount chargeable to the defendant under the terms of the ordinance.

In 1853 the proper municipal officers of the district of Moyamensing, resolved that the plan for the paving of Broad street from Federal street to the south line of the district, be changed so that the central portion between the curbs be thirty-one feet, leaving eighteen feet for sidewalks and twenty-three feet for pebble pavement, on each side of said central part. The sides were paved as thus directed; and the city has paid for paving the sides with Belgian blocks, without attempt to collect the cost thereof from the owners of abutting lots.

The Act of May 3d, 1864, provided that the councils of the city should cause to be commenced, within time for completion by January 1st, 1865, the- macadamizing of the centre 'of Broad street from Washington avenue to Moyamensing avenue. There is no evidence that councils did anything in obedience to that provision. Neither ordinance nor contract is proved. And the oral testimony is too meagre to warrant submission to the jury to find whether the said central part of Broad street had been macadamized under and in pursuance of an ordinance of the city. Whether the alleged macadamizing was paid for out of moneys of the city, or by voluntary contributions, is as immaterial as would be the question, had the ground been occupied for a market, Who paid for the market-house ? There is no evidence to justify affirmance of the defendant’s first and second points.

In Slocum v. The City of Philadelphia, 11 W. N. C., 167, some plots in the centre of Lehigh avenue had been reserved and prepared by the city for market purposes; on either side of these plots the street had been paved and the costs assessed on the abutting lots, the market was duly abandoned, the centre of the street was ordered to be paved and the cost collected from the owners of said lots.. It was contended that there was no liability for two reasons: First, This is not an original paving, the cost of which is to be put upon the property owners; it is a change in the character of the street, similar to the repairing of Broad street. Second, The paving does not come within the Act of February 2d, 1864, sec. 4, which authorizes the imposition of the cost of paving upon the owners of the ground fronting thereon. Judgment was rendered for the city. The principle there decided was properly referred to by the learned judge as conclusive against the plaintiff’s right to recover in this case.

It has been settled that “ assessments on property peculiarly benefited by local improvements are constitutional;” that the original paving of a street in a city is a local improvement almost exclusively peculiar to the adjoining properties; that when a street is once opened and paved, all the particular benefits to the locality derived from the improvement have been received and enjoyed; and thereafter the repairing of the street must be done by the municipality: Hammett v. Philadelphia, 65 Pa. St., 146. Justice Sharswood remarked, that whatever advantage there is in owning property on a wide and handsome street is paid for by the owner in the increased cost assessed upon him for the paving. The principles enunciated iu that case have been reiterated and enforced, recently, in the Appeal of the Protestant Orphans’ Asylum, 17 W. N. C., 47. The owner shall not be charged for repairing, re-paving, or an improvement of the street after it has been duly paved or macadamized, but he is liable in the first instance for the original improvement. This principle does not apply to country roads, but does without exception to the streets in the city. The fourth and fifth points of the defendant involved an inquiry that .could not be submitted to the jury. If the paving was an original improvement the defendant was liable for the proper proportion of the cost, and he is not permitted to defeat recovery on the ground that the improvement was not a local benefit, or that his property, after the improvement, had depreciated in value. The value of real estate in any locality is liable to increase or decrease from various causes, but it is absurd to affirm that the paving of the street on which it fronts makes it of less value. Not a witness on the part of the defendant said that the paving was not a local benefit. The defendant and his neighbors, in their petition to the council, gave strong reasons why the paving would be of peculiar benefit to themselves, and they have not testified that they were mistaken. But be that as it may, the defendant’s liability rests on the fact that the paving under the ordinance of 1879 was an original improvement.

Judgment affirmed.