Leake v. City of Philadelphia

32 A. 1110, 171 Pa. 125, 1895 Pa. LEXIS 1288

Opinion

Pbb Cubiam,

Although macadamizing is prima facie not a paving for a city street, yet it may be a paving if put down by the city in the first instance or adopted subsequently as a pavement for the purpose of turning a road into a street. This municipal act of adoption or recognition as a paved street is the test of the liability of an abutting property owner to pay for further repairs or repaving, as we have just held in Philadelphia v. Eddleman, 169 Pa. 452.

The special facts found by the master bring this case within the rule thus laid down. He reports that Frankford avenue was paved, and assimilated with the rest of the city streets, and so recognized and treated by the municipality for many years before the asphalt pavement was laid, and that the latter was a repaving for which the abutting owners were not liable. On these facts the learned court below was right in issuing the injunction. Decree affirmed at the costs of the appellant.