Craig v. City of Philadelphia

• Decision Date: 07 May 1879
• Citation: 89 Pa. 265
• Parties: Craig <I>versus</I> The City of Philadelphia.
• Court: Pennsylvania Supreme Court

89 Pa. 265

Craig versus The City of Philadelphia.

Supreme Court of Pennsylvania.

February 27, 1879.

May 7, 1879.

February 27th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1877, No. 39.

John H. Campbell and George W. Biddle, for plaintiffs in error. —The defendant filed a special plea averring that the work done and labor performed under the contract between the plaintiff, W. W. Dickinson, and the commissioner of highways, were charged for according to the frontage rule of assessment; and that the ground in front of which said paving and curbing were done, and against which said claim has been filed, is, and was at the time of doing said work, rural property, and assessed as such. On this plea issue was joined.

The deposition of Mahlon H. Dickinson, the then commissioner of highways, put in evidence by the plaintiff himself, proved that all the properties were charged according to the frontage or per foot rule of assessment.

Under this plea, the question whether or not the property in question was rural property was squarely put at issue. The defendant, therefore, had a right under this plea, if it was material, and raised a material question of fact to offer any evidence in support of its averments: Washington Avenue, 19 P. F. Smith 353; Seely v. The City of Pittsburgh, 1 Norris 60; Kaiser v. Weise, 4 Norris 366; Bidwell v. The City of Pittsburgh, Id. 412.

The court erred in refusing to allow the defendant to prove that the widening of Market street was not called for by any reason save as a public improvement, and to keep a grand avenue through the city of a uniform width to the Delaware county line: Hammet v. The City of Philadelphia, 15 P. F. Smith 146; In re Market St., 32 Leg. Int. 370.

It is true that the Act of the 5th of April 1870, under which this improvement was made, does not on its face, show whether the improvement is public or local any more than the Act of the 3d of May, providing for the paving, &c., of Washington avenue and Penn avenue, in the city of Pittsburgh. But in the Pittsburgh cases evidence on the part of the complainants was admitted to show that such was, in reality, its true character. In this case the defendant below offered testimony of precisely the same character, but the court below refused to admit it. This was erroneous, because the defendant certainly had a right to offer testimony to show this, and if the fact were not so, the proper way to meet it would be by countervailing testimony from the plaintiff. The local courts cannot assume to say, in advance, what the character of any improvement is, apart from testimony; and however difficult it may have been for the defendant below to show the fact, he certainly had a right to offer competent evidence to the jury to prove it.

The Act of the 19th day of April 1843, limiting the character of the defence to a municipal lien, is not operative within the district in which this work was performed (the Twenty-seventh Ward), for although, as was decided in Fell v. The City, 31 P. F. Smith 58, the Act of 1843 is still in force in the then incorporated districts, it is not in force in other parts of the present city; and by reference to the Acts of the 17th of February 1844, Pamph. L. 44; 3d of April 1851, Pamph. L. 302, and the 14th of April 1853, Pamph. L. 422, it will be seen that the first incorporation of this portion of the county as the district of Belmont took place in 1844, subsequently, of course, to the passage of the Act of Assembly referred to.

Joseph R. Rhoads and David W. Sellers, for defendant in error. —Whatever may be the fact elsewhere, it is not the experience of this city that an equal charge on ground fronting on a highway works an injustice. If the lot is too shallow for advantageous building, it is readily sold to the one in the rear, or sufficient depth is attained by purchase. In a city where the distance between streets running east and west is uniform from the river Delaware to the city line, no difficulty arises by reason of the contents of the lot.

It is the presumable fact, recognised by a series of adjudications, that ground fronting on an established highway is improved in value more than the cost of the first paving, which has always led to the maintenance of the charge: McMasters v. Commonwealth, 3 Watts 292. And although in a particular case the municipal work is wholly needless for the property charged, yet the same was held valid: Lipps v. City, 2 Wright 503.

The paving in this case was not exceptional. Market street was to be graded and paved according to the established grade. The owners on it were treated by the act as all other owners on the streets of the city. The legislature has provided a uniform and just system relative to rural property in this city which is entirely consistent with the municipal charges assessed thereon which bring it into the market.

The property of the defendant, if distinguished in the return of the assessor as rural, secures an abatement of one-third yearly until it ceases to be so distinguished. There is no mode of allowing a jury to sit as a board of appeal and determine that, if not so distinguished, it ought so to be, and when it is in the course of municipal administration so distinguished, it can not claim, if it be on a public highway, that it shall not be subject to the same local charges as are imposed upon all property in this city.

The second point assigned by the plaintiff in error assumes that although the legislature thought there was reason to widen Market street, it was competent for a jury to hold otherwise. The intent was manifested by the words of the statute, and unless the legislature can not widen a street, there is nothing to argue. In Mayor v. Randolph, 4 W. & S. 514; Clark v. Bridge Co., 5 Wright 160; Smedley v. Erwin, 1 P. F. Smith 450, it was held taking land for a public highway is taking it for a public use, and the degree of the public necessity is for the legislature not for the courts to determine.

Mr. Justice WOODWARD delivered the opinion of the court, May 7th 1879.

A contract was made between W. W. Dickinson and the City of Philadelphia, on the 26th of November 1872, in which Mr. Dickinson undertook "to grade, curb and pave Market street, from Forty-third street to the eastern end of the bridge over Cobb's creek, at Sixty-third street." The work was done, and after its completion, this proceeding was begun to enforce payment by Robert Craig, the defendant below, of the sum assessed on his property as his proportion of the cost. The claim was filed against a lot of ground on the south side of Market street, having a front on that street of three hundred feet, and extending in depth two hundred and fourteen feet to Ludlow street. The authority to make the contract, and the right to enforce the lien against the defendant's land, are rested on the provisions of the Act of the 5th of April 1870, by which it was made the duty of the chief commissioner of highways, immediately after the interest of the West Chester Plankroad and Turnpike Company in the road-bed of Market street, should be surrendered to the city of Philadelphia, "to proceed by giving due notice to property-owners along the line of said Market street," between Forty-third and Sixty-third streets, "and by all other requisite proceedings, to open the said street between the points named to the full width as laid down on the plan of the city, and to grade said street, and to enter into a contract with a competent paver to curb and pave the same; said contractor to collect the costs thereof, except the paving of intersections, as by law and ordinance provided." A verdict was rendered and a judgment entered in the Common Pleas for the full amount of the plaintiff's claim.

At the trial three offers were made on behalf of the defendant, and were rejected by the court. The first and second were propositions to prove that...