In re Widening & Straightening of William Street

13 Pa. Super. 266, 1900 Pa. Super. LEXIS 143

• Court: Superior Court of Pennsylvania
• Decided: March 21, 1900
• Docket: Appeal, No. 7
• Status: Published

Opinion

Opinion by

William W. Porter, J.,

William street is one of the highways of the city of Pittston. The properties fronting upon it are town lots, varying in width. At the point at which William street crosses Fulton street a triangular piece of land projected into William street. The present proceedings were instituted to rid the street of this partial obstruction by the appropriation of the triangular piece of land for public use. A jury of view awarded damages to the extent of 1600 to the owner of the property. Of this, the payment of $200 was imposed upon the town, and the remaining $400 were apportioned and assessed as benefits upon the lots fronting on William street for a considerable distance east and west from the point where the piece of land, for which damages were awarded, was located.

The question presented is, whether the apportionment and assessment of benefits upon the adjacent lots was lawful. In Morewood Avenue, 159 Pa. 20, Mr. Justice Greek says: “ As we have repeatedly decided, the doctrine of assessments for benefits to pay for public improvements can only be defended upon the ground that the benefits are local and essentially peculiar to the very property assessed, and then it can only be done once. This can only be done where the property assessed abuts directly upon the line of the improvement.” See also Fifty-fourth Street, 165 Pa. 8, and In re Orkney Street, 9 Pa. Superior Ct. 604.

The rule thus formulated has grown out of cases arising upon extended improvements, such as the. opening, grading and paving of streets, the building of sewers, etc. The properties on William street, east and west of the point of widening, were in a sense in a line with the improvement, but were not directly “ upon the line of the improvement,” within the rule of law. This evident interpretation of the rule finds support (if it were needed) in the construction given to the same phraseology in the act of May 16, 1891, in Speer v. Pittsburg, 166 Pa. 86, where it was held that the language, “ abutting on the line of the proposed improvement,” means on the portion of the street to be actually improved, and not on the whole length of the street. The plan attached to the report of the jury in this case clearly shows that there is no property save that of Carrie Wad-dell which abuts upon the improvement, which is a widening of the street at one point and upon one side. All of the other property owners had the use of the street for adequate ingress and egress before the present proceeding. By the taking of the land, they have acquired the use of an improved street. So also has the general public. There is, therefore, no benefit to the appellants peculiar to them, or differing in kind from that obtained by the general public. We are of opinion, therefore, that the order of the court below must be reversed.

The exception which raises the question of abutment was filed in time. It was filed before, and was considered and disposed of at tbe hearing in the court below, together with the other exceptions. Furthermore, the defect in the report of the jury is apparent upon the face of the record, and, as it is “ fatal to a decree of confirmation, error may be assigned in this court, although no exceptions were filed in the court below: Bean’s Road, 35 Pa. 280; ” O’Hara Township Road, 152 Pa. 319.

The exception filed by the appellants is sustained and the benefits assessed against the appellants are stricken from the report of the viewers.

W. D. Porter, J., dissents on the ground that more than one party assessed joins in the appeal and would quash the appeal.