Opinion by
Henderson, J.,
This case had its origin in the adoption by the plaintiff borough of an ordinance, No. 282, dated January 23, 1905, locating, relocating, widening and extending an avenue to be known as Eauclaire avenue, from Monongahela avenue to Aurelius street, the name of which avenue was subsequently changed to Schoyer avenue. The lines of the avenue, as designated in the ordinance, included a private road forty feet in width, created by Thomas Dickson in a deed dated August 12, 1867, conveying a portion of his farm to William Collingwood, the right being given in that conveyance “to use the said forty-foot street in common with the said Dickson, his heirs and assigns forever. ” The ordinance above referred to widened this private road by adding a strip five feet [166] in width on each side thereof, on which the borough proceeded to construct sidewalks, for the cost of which liens were entered against the abutting property of the appellees. On the trial the court gave binding instructions for the defendants and refused to enter judgment for the plaintiff on a rule for judgment non obstante veredicto', from which action this appeal was taken. The defense presented was, that no street had ever been opened on the proposed site; that the road referred to in the deed of Thomas Dickson to William Oollingwood was always a private way; that ordinance No. 282 had no other effect than to locate a street which the borough proposed to open; and that no compensation had been secured or tendered to the owners of the land prior to the entry of the borough in the construction of the sidewalk. It is conceded that no ordinance was adopted providing for the opening of the street. What was done by the borough was an enactment that: “An avenue to be known as Eauclaire avenue be located, relocated, widened, and extended from Monongahela avenue to Aurelius street in said borough, as follows: Beginning,” etc. The ordinance was evidently passed on the erroneous assumption that the road designated by Thomas Dickson was a public road; but it is clear from the conveyances relating thereto, and from the testimony with reference to the use made of it, that this was a private way. It is so described in Ordinance No. 113, approved July 11, 1901, providing for a sewer “On Maxwelton avenue from the private street between the properties of Oollingwood and Dickson to the Nine Mile Run Road.” There was some testimony of the use of the way by pedestrians from time to time, but the case is destitute of such evidence as would have warranted the submission of the question to the jury whether there had been a dedication by Thomas Dickson or William Oollingwood or their heirs or devisees to the public. That the ordinance to locate, relocate, widen and extend had not the effect, without more, to so vest title to the street in the borough that it [167] might enter and occupy the ground on which the- sidewalk was constructed, and charge the cost thereof against the appellee, is clearly decided. The borough has unquestioned authority to survey, lay out, enact and ordain roads, streets, and lanes, and to enact and ordain the widening and straightening of them. Where the owner of property on the line of the street consents that it may be opened as laid out, the corporate authorities may proceed to open, thus creating a public highway. But in the absence of such consent, proceedings to open must be resorted to and an assessment of damages procured. An ordinance laying out and ordaining a street without appropriate proceedings to assess the damages, and without the consent of the owner, is not sufficient to justify an entry on the land and invest the borough with authority to charge abutting owners with the cost of street improvements. The distinction between the laying out and the opening of a borough or city street has been long recognized: Forbes Street, 70 Pa. 125; Whittaker v. Phoenixville Borough, 141 Pa. 327. In Philadelphia Parkway, 250 Pa. 257, the court stated the position of the city to be, that until councils passed an ordinance to open the boulevard, a property owner, no matter what injury he may have sustained, does not have the right to have his damages assessed, and this upon the ground that such action is necessary to constitute a taking of property for public use. This, the court said, is the general rule. In that case the city moved to quash, on the ground that until an ordinance to open was passed, there was no taking within the meaning of the law; and if nothing was done to constitute a taking of or injury to property in the constitutional sense, it was premature to ask for the appointment of viewers to assess damages. On this position the court said: “It must be conceded that there is a long line of cases relating to the laying out, opening, widening, and grading streets, lanes and alleys in the municipalities of the Commonwealth, which sustain this position. The bind[168] ing force of these decisions as applied to the ordinary plotting of a proposed new street over unimproved land, or as to widening and grading of streets already established, is frankly conceded by the learned counsel for appellant.......As to ordinary cases relating to laying out, opening, widening, extending and grading streets, lanes and alleys, the settled rule relied on by the city as to the time of the taking, and as to when the trespass, if any, Avas committed, still remains in full force and effect.” The eighth section of Article XYI of the Constitution provides that: “Municipal and other corporations and individuals invested with the privileges of taking private property for public use, shall make just compensation for property taken, injured, or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction.”
In the Parkway case the city was held to be liable in damages notwithstanding the failure to pass an opening ordinance, but the case Ayas said to be exceptional on the ground that while the particular property had not been occupied, the proceeding to open the boulevard was an entire one, and that much property had been appropriated, many buildings destroyed, and a very large amount of public money expended in the improvement, because of which acts and expenditures the city ought not to be heard to say that it had not taken possession of the premises and made itself liable for the damages incident to the construction of the improvement. This case is not authority, however, on the facts presented in the present appeal. It stands on its own facts.
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Opinion by
Henderson, J.,
This case had its origin in the adoption by the plaintiff borough of an ordinance, No. 282, dated January 23, 1905, locating, relocating, widening and extending an avenue to be known as Eauclaire avenue, from Monongahela avenue to Aurelius street, the name of which avenue was subsequently changed to Schoyer avenue. The lines of the avenue, as designated in the ordinance, included a private road forty feet in width, created by Thomas Dickson in a deed dated August 12, 1867, conveying a portion of his farm to William Collingwood, the right being given in that conveyance “to use the said forty-foot street in common with the said Dickson, his heirs and assigns forever. ” The ordinance above referred to widened this private road by adding a strip five feet [166] in width on each side thereof, on which the borough proceeded to construct sidewalks, for the cost of which liens were entered against the abutting property of the appellees. On the trial the court gave binding instructions for the defendants and refused to enter judgment for the plaintiff on a rule for judgment non obstante veredicto', from which action this appeal was taken. The defense presented was, that no street had ever been opened on the proposed site; that the road referred to in the deed of Thomas Dickson to William Oollingwood was always a private way; that ordinance No. 282 had no other effect than to locate a street which the borough proposed to open; and that no compensation had been secured or tendered to the owners of the land prior to the entry of the borough in the construction of the sidewalk. It is conceded that no ordinance was adopted providing for the opening of the street. What was done by the borough was an enactment that: “An avenue to be known as Eauclaire avenue be located, relocated, widened, and extended from Monongahela avenue to Aurelius street in said borough, as follows: Beginning,” etc. The ordinance was evidently passed on the erroneous assumption that the road designated by Thomas Dickson was a public road; but it is clear from the conveyances relating thereto, and from the testimony with reference to the use made of it, that this was a private way. It is so described in Ordinance No. 113, approved July 11, 1901, providing for a sewer “On Maxwelton avenue from the private street between the properties of Oollingwood and Dickson to the Nine Mile Run Road.” There was some testimony of the use of the way by pedestrians from time to time, but the case is destitute of such evidence as would have warranted the submission of the question to the jury whether there had been a dedication by Thomas Dickson or William Oollingwood or their heirs or devisees to the public. That the ordinance to locate, relocate, widen and extend had not the effect, without more, to so vest title to the street in the borough that it [167] might enter and occupy the ground on which the- sidewalk was constructed, and charge the cost thereof against the appellee, is clearly decided. The borough has unquestioned authority to survey, lay out, enact and ordain roads, streets, and lanes, and to enact and ordain the widening and straightening of them. Where the owner of property on the line of the street consents that it may be opened as laid out, the corporate authorities may proceed to open, thus creating a public highway. But in the absence of such consent, proceedings to open must be resorted to and an assessment of damages procured. An ordinance laying out and ordaining a street without appropriate proceedings to assess the damages, and without the consent of the owner, is not sufficient to justify an entry on the land and invest the borough with authority to charge abutting owners with the cost of street improvements. The distinction between the laying out and the opening of a borough or city street has been long recognized: Forbes Street, 70 Pa. 125; Whittaker v. Phoenixville Borough, 141 Pa. 327. In Philadelphia Parkway, 250 Pa. 257, the court stated the position of the city to be, that until councils passed an ordinance to open the boulevard, a property owner, no matter what injury he may have sustained, does not have the right to have his damages assessed, and this upon the ground that such action is necessary to constitute a taking of property for public use. This, the court said, is the general rule. In that case the city moved to quash, on the ground that until an ordinance to open was passed, there was no taking within the meaning of the law; and if nothing was done to constitute a taking of or injury to property in the constitutional sense, it was premature to ask for the appointment of viewers to assess damages. On this position the court said: “It must be conceded that there is a long line of cases relating to the laying out, opening, widening, and grading streets, lanes and alleys in the municipalities of the Commonwealth, which sustain this position. The bind[168] ing force of these decisions as applied to the ordinary plotting of a proposed new street over unimproved land, or as to widening and grading of streets already established, is frankly conceded by the learned counsel for appellant.......As to ordinary cases relating to laying out, opening, widening, extending and grading streets, lanes and alleys, the settled rule relied on by the city as to the time of the taking, and as to when the trespass, if any, Avas committed, still remains in full force and effect.” The eighth section of Article XYI of the Constitution provides that: “Municipal and other corporations and individuals invested with the privileges of taking private property for public use, shall make just compensation for property taken, injured, or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction.”
In the Parkway case the city was held to be liable in damages notwithstanding the failure to pass an opening ordinance, but the case Ayas said to be exceptional on the ground that while the particular property had not been occupied, the proceeding to open the boulevard was an entire one, and that much property had been appropriated, many buildings destroyed, and a very large amount of public money expended in the improvement, because of which acts and expenditures the city ought not to be heard to say that it had not taken possession of the premises and made itself liable for the damages incident to the construction of the improvement. This case is not authority, however, on the facts presented in the present appeal. It stands on its own facts.
The right of a municipality to impose a municipal lien for street improvements is contingent on its adherence to legal requirements. The language of Mr. Justice Brown in Scranton Sewer, 213 Pa. Í, is pertinent in this connection: “A municipality can impose a valid municipal lien for street improvements only when the im[169] provements are made in pursuance of law and the mode pointed out by the city ordinance is strictly followed. Such liens do not rest on any agreement or specific assent of the owner of the land charged with the burden, and the improvement is often against his wish. A clear right must, therefore, be shown by the municipality to justify such an act of sovereign power.” If a city may adopt the plot of a street and enter on it for the purpose of making municipal improvements, no opening ordinance would be necessary, and the right of the owner to compensation would only be determined on the trial by an inquiry as to the intention of the municipality in such entry on the land. Property owners are not under ordinary circumstances left to such uncertain tenure. They are entitled to a specific and definite declaration of the purpose of the municipality and thereby have a basis for a proceeding to recover damages.
None of the facts presented in the case support the appellant’s theory of estoppel. The borough is not misled. It had the same means of knowledge which the appellants had, and no inducement was offered by the property owners under which the borough expended public funds. There was no suppression of the truth; nor was there any encouragement to move the borough to action; and it is not pretended that the plaintiff in good faith relied on the conduct of the defendants in doing the work for which the claim is presented. The case is fully discussed in the opinion of the learned trial judge disposing of the motions for a new trial and judgment non obstante veredicto,and the conclusion therein reached is supported by the evidence and the authorities cited. It is unnecessary to specially consider each of the twenty-two assignments of error. Some of them relate to the admission and rejection of evidence; but the testimony offered and rejected would not, if received, have affected the conclusion reached by the trial judge. The real questions of the case were disposed of as questions of law. The judgment is affirmed.