City of Philadelphia v. Ball

Pee Curiam,

The matters referred to in the first three specifications were properly admitted in evidence. Their discussion is unnecessary.

The only other specification is, that the learned judge erred in instructing the jury to find a verdict for the defendant. The action below was a scire facias sur municipal claim for paving Centre street, in the 22d ward of the city of Philadelphia. The said street, from Main street to the end of defendant’s property, is laid down on the authorized city plans as a street thirty feet wide. The ordinance of Oct. 12, 1885, under the provisions of which the said paving was alleged to have been done, provided that the said Centre street should be first dedicated or properly opened. This is the precise language of the ordinance. It does not appear that the said street, from Main street to the end of the defendant’s property, lias ever been opened. The ordinance of May 8, 1855, provides, “that hereafter no street shall be accepted for public use of a less width than thirty feet.” We do not understand this ordinance to have been repealed. Centre street, where it touches defendant’s property, is of a less width than thirty feet, and does not appear to have been accepted for public use by the city of Philadelphia. .The city ordinance only authorized the paving of the street after it should have been dedicated or properly opened. These prerequisites not having been complied with, we are unable to see any authority for paving it at the expense of the abutting property owners. As there does not appear to have been any disputed questions of fact in the case, we are of opinion that the learned judge below was right in directing a verdict for the defendant.

Judgment affirmed.