Keith v. City of Philadelphia

Opinion,

Mr. Justice Clark :

In applying the rule of res adjudicata in tins case, the question is mainly as to the identity of the matter’ notv in issue, with what was in issue at the trial of the former scire facias, the record of which was offered and refused. This municipal claim having been filed, and the scire facias issued against certain parties as the administrator and heirs-at-law of Julia B. Keith, deceased, it would not be required of the defendants to show that they were the administrator and heirs, for that was part of the plaintiff’s case. The defendants could certainly not be called upon to prove what the plaintiff himself has spread upon the record as the basis of his recovery. As the jurisdiction of the court, hi which the matter now at issue is alleged to have been adjudicated, is conceded, and the identity of the parties, by privity of estate, is established, the question, upon which the whole case turns, is the identity of the matter in dispute.

It is undoubtedly true that the record which was offered would show that certain property, adjacent to the property in question, both together constituting -a larger lot known as the Dower Farm and belonging to the same owner, was adjudged by a court of competent jurisdiction to be rural property and therefore not liable to a lien for paving done inJjNjf^ccording to the foot-front rule of assessment. But the paving in that case was done in JB74, whilst in this case it was done in J.878, and it is contended on the part of the plaintiffs that the record of the defendants’ recovery on a claim for paving in 1874, can have no conclusive effect on the trial of a scire facias for paving done four years later. On the part of the defendants, however, it is argued, that in such a ease as this, the character and condition of the property is to be inquired of - as of the date of the ordiv nance authorizing the improvement, and not of the date when the improvement was made; .and, that as the paving of 1874 and that of 1878 was done under the same ordinance, in front of different portions of the same property, the question now at issue is necessarily the same which was passed upon in the trial of the former action, and that the matter in issue has therefore-passed in rem adjudicatam.

We cannot accept this view of the case. The ordinance of 1872 laid down no rule for the assessment of the benefits resulting to the abutting property; it simply authorized and directed the Department of Highways “ to enter into a contract with a competent paver or pavers, who shall be selected by a majority of the owners of property fronting on -Indiana street, from Kensington avenue to Front street, for the paving thereof with rubble pavement,” with conditions, etc., “ that the contractor or contractors shall collect the cost of said paving from the property owners ” fronting thereon, respectively. The' assessments according to the foot-front rule were not made under this ordinance, but would seem to have been authorized by the general ordinances of the city, enacted May 3, 1855, and June 12, 1868. Bu't these general ordinances, providing for the assessment of benefits according to the foot-front rule, cannot have any application to farm lands or rural property, although the same be situated within the city limits: Washington Ave., 69 Pa. 353; Seely v. Pittsburgh, 82 Pa. 360; Craig v. Philadelphia, 89 Pa. 265. Whilst perhaps all property within the limits of a borough or city may be assessed, according to some reasonable rule, for special and peculiar benefits conferred by local improvements, it is now well settled that the foot-front rule .can only be applied to the built-up portions of the city, or to property ripe for city treatment. Sewerage, sidewalks, paved and lighted streets, fire protection and other city improvements, are not essential to the ordinary enjoyrnents of farm lands, and to impose the expense thereof on a large frontage of such property would amount in many cases to confiscation,.

The streets and avenues, however, must conform to the extent of the city: as the city’s population increases and the demand for homes is developed, they will of necessity be extended accordingly. _ But it is only when, from the built-up condition of the immediate neighborhood, the public health and1 the common convenience and necessity demands these improvements, that they may be made, and the expense thereof apportioned according to the foot-front rule. It is the common; benefit received or about to be received which justifies an ' apportionment of the expense, and the built-up or improved condition and small size of city lots, which renders this rule of assessment a reasonable one.

It is in the application of the rule its legality in each case is to be determined. This provision of the general ordinances of 1855 and 1868 is a valid and proper one, but, as we have said, it must be applied only to city property. The ordinance of 1872 does not apply this or any other rule to the amount of benefits arising from the paving of Indiana street; it simply directs the work to be done.

The provisions of the general ordinances were applied to the property when the assessments were made in pursuance thereof, and it is therefore the condition of the property when the tax is assessed which, in oases of this kind, must control, it follows that the judgment on the former scire facias can have no conclusive effect in this case.

The - record was inadmissible for any purpose. Assuming that the defendants’ property was of a rural character in 1874, and the record, if received, could establish no more, it does not follow that tins was its condition in 1878. Indeed, it is alleged, and it would appear to have been proved that in 1878 very valuable improvements had been made in this vicinity; that a large number of dwelling-houses had recently been erected and were occupied, and that places of business, manufacturing establishments, etc., had been located in the immediate vicinity and were in operation; in short, that the bounds of the built-up city then embraced this property.

The court was right in refusing this record, and as there is no other error assigned,

The judgment is affirmed.