DocketNumber： Appeal, 327
Judges： Moschzisker, Frazer, Walling, Simpson, Kephart, Sadler, Schaffer
Filed Date： 10/3/1929
Status： Precedential
Modified Date： 11/13/2024
Opinion by
Plaintiff, who resided in the Borough of Shillington, wished to enclose the front porch of his home, and applied to defendant, who was its chief burgess, for a permit to do so. Defendant refused to give the permit, whereupon plaintiff sought, by mandamus, to compel him to issue it. The court below overruled plaintiff’s demurrer to the return to the alternative writ, and dismissed the proceedings; whereupon he prosecuted this appeal.
Admittedly, defendant’s only authority for issuing a permit is contained in the following section of an ordinance of the borough:
“Before the erection, alteration, raising or moving of any building or structure within the Borough of Shillington, a permit must first be obtained of the Chief Burgess, said permit to entitle the person or persons, firm or corporation obtaining such permit to have use of the street in length a distance of ten feet beyond the lines of such building or structure on each side and a depth of ten feet from curb line, during the erection, alteration, raising or moving of such building or structure, provided a proper caution is taken to avoid accidents to teams or pedestrians during the time of use of said street, such as properly guarding all such obstructions that may be placed on said street during night and day. The owner of property covered by the permit shall be held responsible for any damages that may result from any obstructions placed on the street or otherwise.”
Under this provision it does not clearly appear that defendant has anything to do with the granting of a permit to enclose the front porch of an existing building, even if it be held that such work is the “alteration...... of any building or structure”; but rather that he is only to issue a “permit [entitling the permittee] to have *22 use of [a portion of] the street.” So far as the record discloses, a permit for the purpose last stated was neither asked for nor refused, and hence the mandamus proceedings were properly dismissed.
The judgment of the court below is affirmed.