8 A. 381 (Pa. 1887), 52, Hershberger v. City of Pittsburgh

Docket Nº:52
Citation:8 A. 381, 115 Pa. 78
Opinion Judge:Mr. Justice CLARK:
Party Name:Hershberger v. The City of Pittsburgh
Attorney:W. W. Thomson (T. H. Baird Patterson with him,) for plaintiff in error.
Judge Panel:Before GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.
Case Date:February 07, 1887
Court:Supreme Court of Pennsylvania
 
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Page 381

8 A. 381 (Pa. 1887)

115 Pa. 78

Hershberger

v.

The City of Pittsburgh

No. 52

Supreme Court of Pennsylvania

February 7, 1887

Argued: November 17, 1886

ERROR to the Court of Common Pleas No. 2, of Allegheny county: Of October Term, 1886, No. 52.

This was a scire facias sur municipal lien, brought by the city of Pittsburgh against Thomas P. Hershberger to recover damages caused by the grading of Carson street in said city. The defendant pleaded no lien, never indebted, and as a special plea that the damage for which the assessment for which the lien in this case was filed, was caused by grading a strip of land not Carson street, and that this was without the authority of an Ordinance or of any law.

On the trial before MAGEE, J., the defendant made the following offers of evidence:

Defendant offers in evidence the petition upon which the Ordinance was based, to be followed by proof that at the time there was a located, opened street which had been used for years known as Carson street, extending from the Monongahela bridge to Saw Mill Run.

Objected to. Objection sustained, and bill sealed for the defendant. (First assignment of error.)

Defendant's counsel proposes to prove by the witness on the stand (C. E. Owens) that there was a commission elected by the property owners on Carson street, under the Act of 1870, and that the witness and his father were the engineers of that commission, for the grading and paving of Carson street, under the Ordinance which has been offered in evidence; that at that time and prior to the passage of this Ordinance, there was a well recognized and well known street extending from the Monongahela bridge down to Chestnut street, known as Carson street; that the commission, acting under the Ordinance, graded and paved partly on said street, and partly altogether to one side of it, a distance of from fifty to one hundred feet from the street and extending in length about one thousand feet; and that the grading and paving of Carson street was not done on the street known as Carson street at the time of the passage of this Ordinance. And to further prove, by this and other witnesses, that there was no Ordinance ever passed by the councils of the city of Pittsburgh changing the location of Carson street, and that a large part of the damages claimed for here were caused by the grading that was done outside of the line of Carson street, as established at the time of the passage of the Ordinance. This for the purpose of showing that this grading was done without authority of law, and that the city of Pittsburgh had no right to collect any damages on the property benefited, or other property, whether benefited or not. Also offers in evidence the Act of April 2d, 1870, known as the Penn Avenue Act: Pamphlet Laws of 1870, p. 796 to 801.

Objected to --

1. That the liens filed in this case, upon which writ of scire facias had been issued, were filed under the Act of January 6th, 1864, and that Act, already offered in evidence, confers the power upon the city to regulate the grading, and that the report of the Board of Viewers, approved by the Court of Quarter Sessions of Allegheny county, follows the Act, and is based upon the benefit derived to these various properties by the grade.

2. That, under the Acts of Assembly already offered, and under which the assessments were made, and for which these liens have been filed, the final approval of the action of the Board of Viewers making the assessments, by the Councils of the city of Pittsburgh, and by the Court of Quarter Sessions of Allegheny county, is conclusive upon the matter which is proposed to be proven in the offer, and is, therefore, incompetent and irrelevant.

Objection sustained and bill sealed for defendant. (Second assignment of error.)

Defendants' counsel proposes to prove by the witness on the stand (C. E. Owens) and others, that at the time of the passage of the Ordinance of November 25th, 1872, entitled "An Ordinance authorizing the grading, paving and curbing of Carson street, from the end of the Monongahela bridge to Chestnut street, and Main street from Carson street to division line of thirty-fourth and thirty-sixth wards, Chestnut street from Carson street to division line of thirty-fourth and thirty-sixth wards, and River road from Chestunt street to city line, and the election of commissioners for that purpose," and prior thereto, Carson street, from the Monongahela bridge to Chestnut street, was, and had been for a long time, a well defined and much traveled public street and thoroughfare, having numerous dwelling houses and other buildings erected up to the line of said street, on each side thereof, and was well known and recognized as Carson street. That no Ordinance of the city of Pittsburgh was ever passed or adopted, changing the location of said Carson street, nor was the location of the said street ever legally or lawfully changed. That the grading aforesaid, although claimed to have been done under and by virtue of the Ordinances aforesaid, was not done on Carson street, or for the improvement thereof, but was done in the construction of a street or roadway over and along a strip of land at some distance from Carson street, and which was not authorized by any Ordinance to be constructed or graded. This for the purpose of showing that the grading of that portion of the street was illegal, and a trespass, and that the defendants are not liable to be assessed for any damages caused thereby.

And further, that the damages, for the payment of which these liens are sought to be enforced, was caused by the grading done on that portion of the street lying outside of Carson street; and, further, that the properties assessed in these cases are situated at a...

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