Borough v. Davidson

Opinion by

Oblady, J.,

A petition, signed by the defendant and a number of others, was presented to the town council of the. borough of Beaver, representing ‘‘ that they are the two thirds of the owners of property representing not less than two thirds in number of feet of the properties fronting or abutting on Third street in said borough; that said street is in a deplorable condition and should be graded and paved with brick or stone; that your petitioners respectfully pray that said street be graded and paved as aforesaid, the cost or expense of the same to be paid for as provided in the act of general assembly approved April 23, 1889, and its supplements, and they will ever pray.”

The town council, actuated by this petition, enacted an ordinance to carry it into effect, made the improvement which was prayed for, and paid all the necessary expenses. After a refusal to pay on demand the proportion chargeable against the property of the defendant, a municipal lien was filed to enforce its payment.

After causing the municipal authorities to act, so as to relieve the deplorable condition of which the defendant complained, the defense is made that the original petition did not in fact contain the necessary number of signers, and that, prior to the commencement of the work, the ordinance was not transcribed into the ordinance book of the borough.

The defendant, and all others interested, were notified to be present at the' meeting of council at which the ordinance was offered. It was regularly adopted by council and approved by the burgess on August 9,1892, and then published by posters and in the newspapers of the borough. The contract for the work was executed October 6,1892, under which about $42,000 were expended by the borough and the work was completed November 15, 1893. In January, 1894, a notice, containing a statement showing the specified items of work, rate, and its total cost, was given to the defendant, by which his assessment was fixed at $146.40. In the defense made to this municipal claim there is no suggestion that the work done under the proceeding, of which the petition was the corner-stone, was not of a high character, and was not done for reasonable prices.

This defendant must be considered as instituting, or at least authorizing others to represent him in instituting, the proceeding which resulted in causing a large outlay of money by the borough, and in improving Iris own property. After having so acted, it would be unjust and inequitable if he should be allowed to complain of an irregularity which as to himself was at most an omission that did not affect the integrity of the ordinance, and by which defense he would receive the benefit of the proceeding, and be exempt from liability therefor.

Having thus united with other property owners in procuring the improvement, and having enjoyed the benefits resulting therefrom, it comes with bad grace for appellant to object to paying his proper share of it. In equity and good conscience he should pay it. The facts and circumstances of the case justify the application of the principle of estoppel enforced in Bidwell v. Pittsburg, 85 Pa. 412, Dewhurst v. Allegheny, 95 Pa. 487, and Sewickley M. E. Church’s Appeal, 165 Pa. 475.

The judgment is affirmed.