Seaman v. Borough of Washington

33 A. 756, 172 Pa. 467, 1896 Pa. LEXIS 800

Opinion

Opinion by

Mr. Justice Green,

The principal contention of the appellant in this case is that the act of May 24, 1878, P. L. 129, under which the present proceeding was instituted, was repealed by the act of May 16, 1891, P. L. 75. The proceeding was a petition of the plaintiff to the court of common pleas of Washington county to appoint five viewers to assess the damages alleged to have been sustained by him by reason of a change of grade made by the defendant in the street and sidewalk in front of his premises, situate on Chestnut street in the borough of Washington. The proceeding was instituted under the act of 1878, and if it had been repealed by the act of 1891 the plaintiff had no case. The learned court below held that the act of 1878 was not repealed and appointed the viewers who assessed the damages, from which assessment the defendant appealed to the common pleas where the case was tried before a jury who found in favor of the plaintiff, and from the judgment on the verdict this appeal was taken.

There was no repealing clause in the act of 1891, and the contention of the defendant is that the act of 1878 was repealed by necessary implication, because the two acts are so inconsistent that they cannot stand together. After a careful reading of the two acts we are convinced that the court below correctly decided the question, and that the act of 1878 was not repealed by the act of 1891. The act of 1878 consists of a single section and it provides, “ That in all cases where the proper authorities of any borough within this commonwealth, have or may hereafter change the grade or lines of any street or alley, or in any way alter or enlarge the same, thereby causing damage to the owner or owners of property abutting thereon, without the con sent of such owner or in case they fail- to agree with the owner thereof for the proper compensation for the damage so done or likely to be done or sustained,” the court of common pleas on application by petition of the burgess and council or the owner of the property injured shall appoint five disinterested persons as viewers who shall view the premises and assess the damages and report their proceedings to the court.

The title of the act of 1878 is “ An act for appointing viewers to assess damages where streets and alleys are changed in grades or location, in the several boroughs of this commonwealth.”

It will be observed at once that the jurisdiction conferred by the act is limited to the boroughs of the commonwealth, and to changing the grade or lines of any street or alley, or in any way altering or enlarging the same. No authority is given to open or lay out streets and alleys, nor to construct sewers, bridges,, or other works or vacate streets or alleys.

The act of 1891 in its first section provides, “ That all municipal corporations of this commonwealth shall have power whenever it shall be deemed necessary in the laying out, opening, widening, extending or grading of streets, lanes or alleys, the construction of bridges and the piers and abutments therefor,, the construction of slopes, embankments and sewers, the changing of water courses or vacation of streets or alleys, to take, use, occupy or injure private lands, property or materials,” and in case the compensation for damages or benefits has not been agreed upon the court of common pleas, or a judge thereof in vacation, on application by- petition by the municipal corporation or any person interested, shall appoint three freeholders as viewers to view the premises and they must give public notice-for at least ten days in one or more newspapers of their first meeting. The second section directs the viewers to hear all parties interested after having viewed the premises and examined the property, and to estimate and determine the damages-for property taken, injured or destroyed, and to whom the same is payable; they shall also determine the benefits and thereupon they shall prepare a schedule thereof and give notice to all parties to whom damages are allowed, or upon whom assessments for benefits are made, of a time not less than ten days thereafter, and of a place when said viewers will meet and exhibit said schedule and hear all exceptions thereto and evidence. After they have heard and disposed of all exceptions filed, they shall make report of their action to the court, and file a plan showing the improvements and the properties injured and also the properties benefited, after which public notice must be given of the filing of the report, and that unless exceptions are filed within thirty days the report will be confirmed absolutely. Other provisions follow respecting the payment of the damages by the corporation, or by the assessment of benefits on properties benefited, and other matters of detail such as filing exceptions and giving a right of appeal to obtain a trial by jury.

All these provisions, none of which appears in the act of 1878, are simply intended to carry into effect the execution of the powers and authorities conferred by the act, and are not in any degree inconsistent with the provisions of the act of 1878 in the very limited class of cases for which that act was passed. As will be hereafter shown there is no repugnancy between two acts which provide different proceedings even for the same class of cases. But it is at least doubtful whether the act of 1891 includes the cases provided for by the act of 1878. The principal jurisdictional section of the act of 1891, to wit, the first section, certainly does not include them, and it is only by a very liberal construction of the eighth section that it could be held that any part of the act of 1891 embraces them. The language of the eighth section is that “ Every municipal corporation shall have power to lay out, establish or re-establish grades of streets and alleys, and to construct bridges, piers and abutments therefor, and sewers and drains in any street or alley, or through or on or over private property.” The remainder of the section gives power “to grade, pave, curb, macadamize and otherwise improve any public street or public alley within its corporate limits,” etc. But this does not include the power to change or alter any existing grade, and the power can only be exercised, “ upon the petition of a majority of property owners in interest and number abutting on the line of the proposed improvement,” whereas the powers of the court under the act of 1878 may be invoked on the single petition of the owner interested. There is nothing in the eighth section except the word, “ re-establish,” that can suffice to give jurisdiction in the case of altering or changing grades. But the re-establishment of a grade already established does not necessarily mean the alteration or changing of such a grade. Hence it is at least doubtful whether the jurisdiction conferred by the act of 1878 is embraced within that conferred by the act of 1891. But a doubtful repugnance is not sufficient to defeat the prior act as we have many times held.

We do not see any reason why these two acts cannot stand together and both be executed in their appropriate cases. The act of 1878 provides a remedy for the individual citizen in the single case of changing or altering grades, whereas the act of 1891 provides comprehensively for proceedings intended to be instituted by municipalities chiefly, in all cases of laying out, opening, widening and extending streets, alleys and lanes, and for the building of bridges, piers, abutments, sewers and other works, and for ascertaining in one proceeding all the damages suffered by all abutting owners affected by the particular improvement, and assessing upon all properties benefited, the amounts of the benefits as a fund out of which to pay the damages. The act of 1878 contains no such provisions and therefore there is no conflict between the two acts as to these most important matters. Comprehensive as the act of 1891 is, it does not embrace the very case provided for by the act of 1878, while it is only possibly true that under the eighth section of the act of 1891 redress might be had by the individual citizen for the injury inflicted by changing and altering grades. This subject is well illustrated by our decisions in the cases of Hand v. Fellows, 148 Pa. 456, and Hanover Borough’s Appeal, 150 Pa. 202. In the former we held that the act of May 28, 1889, P. L. 228, which provided a comprehensive code for the government of cities of the third class and for the regulation of their municipal affairs, including the grading, paving or macadamizing of streets, etc., was not repealed by the act of May 16, 1891, the one we are now considering. We held that the latter act applied to all the cities of the commonwealth, that it is an affirmative act containing no repealing section or clause, and can have no effect on the act of 1889, unless the system provided by it is so inconsistent with that previously existing as to make it impracticable for them to stand together. Our brother Williams, who delivered the opinion, carefully pointed out the points of similarity and difference between the two acts, and showed, in a course of reasoning directly applicable to the present case, that there was no such inconsistency between them as to require the repeal of the first act. He concluded by saying, “ If the persons interested desire the improvement to be made upon the basis of liability according to benefits, they will proceed under the act of 1889 ; but if they wish the foot front rule applied they will follow the line of procedure marked out by the act of 1891.” Just so in the present case, if the citizen desires to proceed on his own account and for the ascertainment of his own damages alone, he will proceed under the act of 1878, which is especially adapted to his case, whereas if he wishes to embrace in his proceeding all the cases affected by the particular improvement, he will proceed under the act of 1891.

In the case of Hanover Borough’s Appeal, 150 Pa. 202, we held that the power of a borough of its own motion to open or widen a street under the general borough law of April 3, 1851, P. L. 320, is not impaired by the act of May 16, 1891, now under consideration, providing for the passage of ordinances for such purposes on the petition of a majority of the property owners. That there is nothing repugnant in the existence of two methods of initiating improvements, and that a borough council may exercise its own judgment as to a street in a built up portion in a borough, while as to a remoter highway it may wait to be moved by the petition of the property owner. Our brother Mitchell, delivering the opinion, said, “ In steering through constitutional restrictions well meant, but destructive of necessary governmental powers, the legislature had found it difficult to construct statutes conferring powers and modes of procedure suitable to all the diverse needs, situations and wishes of the multitude of municipal organizations in the state. In the effort some well intended acts had come to naught, and others had been shorn of sections that left inconvenient gaps here and there in the whole system. It was to fill these gaps to supply the casus omissi and to supplement powers doubtful or defective, that the act of 1891 was passed. It took away no power in any municipality that existed before, nor interfered with any mode of its exercise except as already said, where there is an irreconcilable repugnancy.” The opinion then pointed out that there was no such repugnancy in that case on account of the fact that two different modes of initiating proceedings were in existence under the two acts, and that the act of 1891 was, “ not a borough act merely, but relates to all municipalities. There is nothing repugnant in the existence of two methods of initiating the improvement.”

Upon the whole case we do not consider these two acts of 1878 and 1891 inconsistent or repugnant to each other, and as the act of 1878 is not repealed expressly, we hold it is still in force.

That the legislature so regards it is conclusively proved by the fact that they enacted a supplement to it by an act approved June 24, 1895, P. L. 248, giving the viewers mileage at the rate of ten cents per mile in addition to the pay of one dollar and fifty cents per day provided by the act of 1878.

The first assignment of error is dismissed. As to the second it will be observed that the petition for viewers expressly asserts that the change of grade “ was made without the consent of the petitioner, and that no compensation for the injury inflicted upon his property by reason thereof, has been agreed upon by the said borough and the petitioner.” This averment in the petition gave full jurisdiction to the court below to entertain the petition. We are not referred to any testimony to show that the borough and the plaintiff ever agreed upon any compensation to be paid, or that he ever assented to the change of grade, but the first point of the defendant, the answer to which is complained of in the second assignment, asked the court to instruct the jury that if they found' that no claim was presented to council for damages on account of the grading and paving of the street in front of his premises, or that no attempt was made to arrive at an understanding or agreement with the borough regarding the amount of damages or that the grading and paving was done with his consent, there could be no recovery. The point as submitted was much too broad. The presenting of a claim for damages to council is no part of the statutory requirement, nor is an unsuccessful attempt to agree a jurisdictional fact essential to recovery. The mere absence of consent of the owner to the change is of itself alone sufficient to enable a recovery, so also is a mere failure to agree. This does not imply anything more than the language declares. It is different from most of the acts in this respect. That is. if there was an actual failure to agree from any cause, not necessarily as the result of an abortive attempt to agree, it is enough to justify a recovery. But either one of these conditions alone is sufficient. Now undoubtedty there was in point of fact a failure to agree. Whether there was an unsuccessful attempt to agree is not essential in cases under this act. But the answer of the court was correct in holding that if the plaintiff did merely consent to the change of grade he was not thereby estopped from recovering unless his consent amounted to an express release of damages. This is fully sustained by our decision in the case of Jones v. Bangor Borough, 144 Pa. 638, where we held that even the joining in a petition for the change of grade did not prevent one of the petitioners from recovering damages for the change. This consideration applies also to the third assignment of error and for these reasons both the second and third assignments are dismissed. The fourth assignment is without merit. The court charged correctly in regard to the shade trees in the general charge, telling the jury that they could not allow any sum distinctly as damages either for the trees or porch, but that in estimating the-difference in market value of the whole property before the improvement and after it, they might take into account the condition of the property as it was with the trees and porch,, and as it was without them, and then determine whether the market value of the whole property had been affected by the improvement. We regard this as a correct statement of the law on this subject and therefore dismiss the fourth assignment. The merits of the case were necessarily submitted to the jury and therefore the fifth assignment is dismissed.

Judgment affirmed.