City of Philadelphia ex rel. Johnson v. Rule

Mr. Justice Gordon

delivered the opinion of the court, February 9th 1880.

The stone produced by Samuel Johnson, as a sample of the material of which the pavement in controversy was composed, ought to have been admitted in evidence. He swore that it was exactly like those put into the street; that it came from the same quarry and was the same stone. It was of the general character of the material used that the jury was to judge, and for this purpose a sample of the rock from which it was taken was just as good, if not better, than a block taken from the pavement. Furthermore, it was error to tell the jury that the plaintiff might have produced specimens of the stone taken from the street, and that its not having done so was a circumstance that might weigh against it. The city had a right to rely upon evidence of the general character of the material as it appeared in the road-bed, and upon proof of the proper execution of the work, and that it did not have the stones dug up and produced in court was not a circumstance from which unfavorable inferences might be drawn. Certainly a mechanic or contractor is not obliged to tear up his finished work in order to present samples to a jury; such a rule as this would not only be novel and unreasonable, but often impossible.

But this error, as well as some others which might be found in the rulings of the court below, becomes harmless in the presence of the undoubted fact, abundantly proved and not denied, that the property, through which the street runs, was, when the paving was done, and is now, farm land-, The property sought to be charged by the lien in controversy lies immediately north of Chestnut street and east of Fifty-sixth street, and is part of what was once known as the Gamber farm, upon which the only building is an old log-house. At the time of this street paving there were but about twenty-five houses between Forty-second and Fifty-sixth streets, and but three west of Forty-sixth, whilst immediately south and west of the property of the defendant the country was wholly occupied for farming and grazing.

This completely rural character of the territory, in which the defendant’s lot is situated, protects it from the frontage rule of taxation. A rule of this kind, as applied to country property, is unequal, unjust and unconstitutional; and in thus saying we but repeat what has been said over and over again, in a long series of cases, commencing with the Washington Avenue Case, 19 P. F. Smith 852, and ending with Craig v. City of Philadelphia, 8 Norris 268.

It thus follows, from the facts above stated, that the errors committed by the court below did the plaintiff no harm, since, in any event, the verdict must have been for the defendant.

Judgment affirmed.

Paxson, J., dissented.