City of Philadelphia v. T. B. Rice & Sons Co.
| Decision Date | 08 May 1922 |
| Docket Number | 371 |
| Citation | 118 A. 14,274 Pa. 256 |
| Parties | Phila. to use, Appellants, v. T. B. Rice & Sons Co |
| Court | Pennsylvania Supreme Court |
Argued March 29, 1922
Appeal, No. 371, Jan. T., 1922, by plaintiffs, from judgment of C.P. No. 1, Phila. Co., Dec. T., 1918, No. 6706, on verdict for defendant, in case of City of Philadelphia to use of McNichol Paving & Construction Co., to use of the Third National Bank v. T.B. Rice & Sons Co. Reversed.
Scire facias sur municipal claim for paving. Before PATTERSON, P.J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for defendant. Plaintiffs appealed.
Error assigned, among others, was refusal of plaintiff's motion for judgment n.o.v., quoting record.
The judgment of the court below is reversed and judgment is here entered for plaintiffs non obstante veredicto; the damages to be assessed in the court below as in other similar cases.
Frank Rogers Donahue and Glenn C. Mead, Assistant City Solicitor with them David J. Smyth, City Solicitor, and Samuel M Clement, Jr., for appellants. -- The offering in evidence of the lien filed establishes the facts therein set forth and makes out a prima facie case for plaintiff: Phila. v. Bilyeu, 19 Pa. Dist. R. 454.
Even though a general benefit may result from the improvement this will not alter the local benefit by reason of which local benefit this lien may properly attach: Huidekoper v. Meadville, 83 Pa. 156; Beechwood Ave., 194 Pa. 86; Phila. v. Ginhart, 48 Pa.Super. 648; Michener v. Phila., 118 Pa. 535; Hammett v. Phila., 65 Pa. 146.
Reynolds D. Brown, for appellee. -- While an ordinary city street is presumed to be laid out and improved for the benefit of the abutting property owners, nevertheless a great avenue or boulevard is presumed to be laid out for the benefit of the public, and the cost must therefore be assumed by the public: Craig v. Phila., 89 Pa. 265; Hammett v. Phila., 65 Pa. 146; Phila. v. Brown, 28 Pa. Dist. Rep. 1.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON and SADLER, JJ.
The City of Philadelphia, to the use of its contractor, who had paved Delaware Avenue in front of defendant's property, issued a scire facias upon a municipal claim, filed to recover the cost of the paving; defendant raises no question regarding the contract between the city and contractor, or touching the character of the work done, but alleges that the paving was part of a comprehensive scheme for the improvement of the port of the city, that the benefit to defendant's property, if any, was only incidental, not intended to be and in fact not taken into consideration in making the improvement, and hence payment should not be required of it. Upon this issue the case was tried twice, defendant recovering a verdict each time; on the last verdict judgment was entered and plaintiffs appealed.
At the trial, plaintiffs' point for binding instructions was refused; after verdict, their motion for judgment non obstante veredicto was dismissed; these two rulings are among those assigned for error, and are the only ones we find it necessary to consider. There is no substantial dispute regarding the facts; but in determining the controversy it must be steadily borne in mind that the defense is affirmative in character, and also that section 20 of the Act of May 28, 1915, P.L. 599, 605, makes the claim "prima facie evidence of the facts averred therein;" hence the burden was upon defendant to produce sufficient evidence to require the issue to be submitted to a jury for its consideration.
Delaware Avenue is a wide thoroughfare, adjoining and paralleling the Delaware River, and is principally used by cars and other vehicles carrying freight to and from the vessels which dock at the wharves of the river. Defendant owns a property at the northeast corner of Delaware Avenue and Mifflin Street; prior to the comprehensive improvements hereinafter detailed, it fronted on Commercial Avenue, -- a plotted but unopened street 100 feet wide, -- but by these improvements Delaware Avenue was extended Southward in front of and past defendant's property, and the bed of Commercial Avenue became part of the bed of Delaware Avenue, which was made 200 feet wide at this point.
By an ordinance dated June 25, 1912, the Department of Public Works of the City was authorized, inter alia, to revise the lines and grades of Delaware Avenue, southward from Queen Street to beyond defendant's property, and of the streets intersecting therewith and adjacent thereto. When this revision was completed, the department was directed, by the ordinance of January 23, 1913, to notify the owners of property fronting on those streets that, at the expiration of three months, they would be opened at their increased width; this was in fact done and defendant claimed and was paid the damages which his property sustained by reason thereof.
By an ordinance, approved February 25, 1913, a loan of $7,000,000 was authorized, $250,000 of which was to be for the improvement of South Delaware Avenue; and by an ordinance approved May 2, 1913, from this loan that amount was directed to be set apart for the purpose stated, to be used "as council shall hereafter authorize."
By an ordinance approved July 3, 1913, Defendant's property is between the points named, but no paving was done in front of it under the authority of this ordinance.
By an ordinance approved February 13, 1914, the mayor of the city was authorized to execute, acknowledge and deliver a contract (fully set forth in the ordinance) between the City and the Philadelphia, Baltimore and Washington Railroad Company, the Pennsylvania Railroad Company, the Schuylkill River East Side Railroad Company, the Baltimore and Ohio Railroad Company and the Philadelphia Belt Line Railroad Company. A fair abstract of its numerous provisions will be found in our opinion in Chew v. Philadelphia, 257 Pa. 589; for present purposes it suffices that the railroad tracks in the Southern part of the city were to be elevated, thereby abolishing present and avoiding future grade crossings; the existing railroads, and others later entering the city, were to be authorized, on equitable terms, to use any of the railroad tracks, no matter by whom owned; Delaware Avenue was to be widened and extended southwardly so as to pass defendant's property, and was to be paved a part of the distance but not to that point; this latter part of the improvement being made in order to enlarge the port facilities by providing an avenue along the river, wide enough for the probable needs, present and future, of the individuals and railroads carrying freight to and from the vessels, docked at wharves made sufficiently large to safely hold the vessels and allow them to be easily loaded and unloaded, whatever their size might be.
The last ordinance...
To continue reading
Request your trial