Bieber v. Kutztown Borough

Opinion by

Mobbison, J.,

A very careful examination of the bill, the evidence and the findings of fact, conclusions of law and opinion of the learned judge below convinces us of the correctness of his decision. And in view of the very thorough and able manner in which he has considered the whole ease, it is doubtful if anything profitable can be added in support of his decree.

The borough of Kutztown was duly incorporated and made subject to the provisions of the general borough law of April 3, 1851, P. L. 320 and its supplements.

The plaintiff is a resident of said borough and the owner of two two-story brick houses and a tract of land consisting of building lots, fronting for a distance of about 570 feet upon the eastern side of Noble street in said borough. This street was originally laid out according to what is known as the “ Fisher plan,” which was adopted in 1859. The center line of the street was fixed at its intersection with Sander alley, by a stone known as the “ Fisher stone,” and at the southern limits of the borough by a hole drilled in a rock, and so described on the plan. The street was originally laid out and opened fifty feet wide. By ordinance of July 3, 1885, it was ordained, “ that that part of Noble Street. ... be widened and laid out to the width of fifty-four feet as follows, to wit: Beginning at a corner in the center of Sander alley marked by a planted stone, so called the “ Fisher stone,”at said street and running thence by lots lying on the east side of said street. . . . and lots lying on west side. . . . south, 22° east, 2,106.36 feet to a point in the center of a public road running along the southern limits of said borough of Kutztown.”

The whole contention in this case arises over the question of the true interpretation of this ordinance. The plaintiff contending that it did not change the original center line of Noble street, as it was fixed when the street was first laid out and opened. On the other hand, the representatives of the borough contend that notwithstanding the commencement of the center line of the street at the original stone, yet the effect of the ordinance was to establish the center line easterly from the original location so that in front of the plaintiff’s premises, the easterly line of the street, when opened in pursuance of said ordinance, would encroach upon the plaintiff’s premises nearly two feet, and would pass through his brick buildings about that distance from their fronts.

The learned court upon elaborate findings of fact (which are not excepted to) found as a matter of law and fact that the center line of said street, as established by the ordinance of July 3, 1885, was precisely the same as it had been from the establishment of the street. In other words, that the effect of the ordinance was simply to widen the street to fifty-four feet by taking two feet from the lots on both sides of the street. That is, measuring twenty-seven feet from the Fisher line, east and west. If the line is to be established as contended for by the Borough, the front of plaintiff’s brick buildings will be nearly two feet in the street. But if the center line of the street is maintained as it always has been, then the plaintiff’s brick houses are practically on the line of the street.

After this ordinance of July 3,1885 went into effect, viewers were appointed to view a.nd assess the damages caused by the widening of the street. The petition by the borough for the appointment of these viewers, among other things, contained the following: “ That public necessity and convenience requires that the said street be widened and laid out to public use to the width of fifty-four feet.” The viewers acted and made their report and awarded no damages to the plaintiff. We think the language above quoted and the action of the viewer furnished very strong evidence that the borough, or its representatives, at that time, did not construe the ordinance as changing the center line of Noble street, because it is not reasonable to suppose that no damages would have been awarded to the plaintiff, if it was understood that two feet in depth of the front of his buildings was to be cut off by the street line.

On September 10, 1897, the borough council, by resolution, directed an engineer, Charles F. Sander, to prepare a map of the borough, and on February 17, 1898, the council, by resolution, approved the map by that time prepared by Sander. This map was thereafter kept hanging for public inspection in the council room. Upon this survey the center line of Noble street was made to conform to the original line, the Fisher plan.

In 1897 when plaintiff was about to build the two brick houses referred to, he applied to the borough council for the proper building line, and Sander was instructed by the council to give him the line; and Sander thereupon gave the plaintiff the building line, in accordance with the Sander survey which he was then preparing. And the houses were placed accordingly.

The above circumstances furnish very strong evidence that the present contention of the borough, that the ordinance of 1885 changed the center line of Noble street, is an afterthought. At best the said ordinance is not clear,' as is shown by its reading and by the different views taken as to its effect. We quite agree with the learned court that the borough has power to change the center line of the street. But when that is done it should be by an ordinance which is clear and not susceptible of reasonable doubt as to its meaning. If this street is to be so changed that it will encroach upon the buildings of property owners along the respective sides, they will clearly be entitled to damages and, therefore, it is necessary that tho ordinance should be so clear and precise that all interested parties will have notice, and that the lines of the street can be accurately fixed and the damages ascertained and assessed with reasonable certainty.

It is earnestly contended by the learned counsel for appellant, that a line run from the “ Fisher stone ” south 22° east, 2,106,86 feet to a point in the center of a public road running along the southern limits of the borough, places this point about three feet east of the hole drilled in the rook as originally fixing the center line of Noble street. The learned court below did not regard the variation as of much importance. In this view we concur. It is not at all peculiar that a surveyor running this line in 1885 might, by carelessness, imperfect instruments, the variation of the needle or by all of these things combined, end his line three feet east of the original hole in the rock. The fact that he fixed no other monument but simply ended at a point, in our opinion, furnishes strong evidence that he ended his line at the said hole, or so near thereto that he deemed it unimportant and, therefore, did not fix any other monument upon the ground. This view is strengthened by the fact that the other end of the line was not changed at all.

But it is unnecessary to further discuss the questions raised, as we are entirely satisfied with the decree of the court below, and the reasons of the learned judge in support thereof.

The assignments of error are all dismissed and the decree is affirmed; and it is further ordered that the appellant pay the cost of this appeal.

Porter and Henderson, JJ., dissent.