Main Street, Big Run Borough

20 A. 711, 137 Pa. 590, 1890 Pa. LEXIS 999

• Court: Supreme Court of Pennsylvania
• Decided: November 3, 1890
• Docket: No. 2
• Status: Published

Opinion

Opinion,

Mr. Justice Green:

In the case of Chestnut Avenue, 68 Pa. 81, a portion of the avenue was ordered to be opened, and thereupon a petition of the owners, through whose land the street was opened, was presented for the appointment of viewers to assess the damages they would sustain by reason of the opening. A jury was appointed, who assessed the damages of the petitioners at $2,500, and charged a considerable part of the amount upon land which was situate upon a portion of the avenue which had been previously opened. Exceptions were filed by tbe latter owners, who claimed that tbe benefits could only be assessed upon the land lying on the portion of the avenue which was opened by the proceedings then pending. These exceptions were dismissed by the court below, and on certiorari to this court we affirmed that decision. Read, J., in delivering the opinion, said: “ The court below, upon a fair construction of these acts, has held that it applies to all property owners on the whole line of the street, and not merely to those on the line of the portion opened, which we think to be the correct and reasonable interpretation of the legislative language.”

The acts, under which the proceedings in the case of Chestnut Avenue were held, were not the same as the act of 1856 under which the present proceeding was commenced, but, so far as this question is concerned, they are of the same import, and it is quite clear to us they have the same meaning. It follows that the viewers in this case could have assessed benefits upon the properties lying on the line of Main street west of Hudson street. But, on that portion of the street, four of the viewers for assessing damages and benefits were property owners, whose land abutted on the street. They were therefore .directly interested in the assessment, and, in consequence of such interest, they were disqualified from acting as viewers. Their names and the lands they owned appear upon the map of the street annexed to the petition, so that the fact of their ownership appears upon the face of the record. This exception is fatal to the proceedings, and they must therefore be set aside.

It is unnecessary to consider the second assignment of error, though it appears to be sustained by the discrepancy between the courses and distances as they are set forth respectively in the petition and the report of the viewers.

The order of the court below is reversed; the first and second exceptions are sustained, and the petition and proceedings are set aside, at the cost of the appellees.