Erie's Appeal

The pavement laid by the realty company was not a municipal pavement. This court has never deviated from the proposition expressed in many cases that "the controlling consideration [in determining whether a pavement is a municipal pavement] is affirmative municipal intention": Phila. v. Muller, 293 Pa. 360; Phila. v. Eddleman, 169 Pa. 452. The court below with entire correctness said on this point, "That the pavement was adopted as such by the city is more than doubtful. It was not adopted by resolution or ordinance of council and the language of the deed by which the city took title to the streets is insufficient to impute municipal recognition of the pavement as such. Nor is there positive evidence of subsequent acquiescence from which adoption might be inferred. The city did nothing, and a passive policy of neglect for the period of six years cannot be construed as acquiescence or adoption. 'The authorities are clear that in itself the taking over a turnpike road is not such an adoption by a municipality as to make the surfacing then in existence come within the legal meaning of an original paving': Phila. v. Eddleman, supra; Dick v. Phila.,197 Pa. 467; Phila. v. Hafer, 38 Pa. Super. 382."

The court's finding of no municipal adoption of the pavement should logically have led to the sustaining of the exceptions. But the court departed from the path of logic and said: "We believe that what the city did was not to construct a new pavement but to repair the old, and a city cannot assess property for the cost of repairs": Williamsport v. Beck, 128 Pa. 147. If the city had never adopted the old pavement there was in contemplation of law no old pavement to be repaired.

The work done by the city on the Kahkwa Boulevard was not a repair job either in law or in fact. In law, that pavement as a municipal pavement never existed. "Repair implies the existing of the thing repaired": Gulf City Street Railway and Real Estate Co. v. Galveston, 7 S.W. 520. To call this a repair of an existing pavement is begging the question. It assumes that the "pavement" being "repaired" was a municipally accepted pavement, which it was not. Neither was there in any correct factual sense a repair job. The word "repair" nowhere appears in the ordinance authorizing this work. The entire ordinance from beginning to end contemplated the laying down of a complete modern asphalt pavement on Kahkwa Boulevard and this was the first pavement the city had anything to do with in this area on this boulevard. The city ordinance providing for the paving of the boulevard in 1927 is entitled "an ordinance for the grading, curbing, draining and paving of the roadway of Kahkwa Boulevard" a certain distance. The pavement cost $14,982.50. The order of court appointing viewers to assess damages and benefits refers to the "construction [not therepair] of the said pavement." The body of the ordinance uses the same expression. The report of the viewers refers to the benefits "accruing from the pavement," not from any "repairing." The city engineer of Erie characterized the Tarvia pavement laid by the realty company about 1920 as not a permanent pavement. "Tarvia forms a pretty good base for pavement to be laid at a later date," he said. "Tarvia pavement is nothing but a temporary road; it is not intended for modern traffic at all," he added. The chief paving inspector of Erie testified that after the so-called tarvia "paving" of the boulevard by the realty company "it wasn't a paved street." He said he "found a slag base" and in "some places a little tarvia on the top of the slag." He described the work done by the city on this street in 1927 as "levelling up the portion of the street that had fallen into decay and covering it with asphalt top." He said they found "the base out of shape," that the City of Erie had "no type of [street] improvement that was found on Kahkwa Boulevard, that the city used six-inch concrete base, one and one-half inch of binder and one and one-half inch of sheet asphalt."

In view of the opinion of this court in this case I know of nothing to prevent other real estate companies or private individuals from laying some kind of alleged pavement in front of their properties, without regard to the future grade of the street or to the needs and plans of the municipality, and then, after the municipality decides to pave that street in a uniform and adequate manner, contending successfully that the city could not assess the benefits of that pavement upon the abutting property owners. There is not a particle of evidence in this case to show that the City of Erie ever adopted the pavement laid down by the realty company. The city having never adopted as its own the paving product of the private corporation, it was not under the slightest obligation to give it legal recognition. It had an undoubted right to proceed as it did in 1927 to pave the streets according to its own plans and specifications and in a manner adequate to its traffic needs, and had the right to assess the benefits of the same upon the abutting property owners. A realty company cannot exercise municipal functions. The ordaining and constructing of pavements is a governmental function of a city. The City of Erie never abdicated any of its functions to the Kahkwa Park Realty Company. I would frustrate this (now apparently successful) attempted usurpation of municipal functions by this company and deny to it the power to take away from the City of Erie the latter's right to control the paving of its own streets.