McGonigle v. The City of Allegheny

• Decision Date: 25 November 1862
• Parties: McGonigle <I>versus</I> The City of Allegheny.
• Court: Pennsylvania Supreme Court

Page 118

44 Pa. 118

McGonigle versus The City of Allegheny.

Supreme Court of Pennsylvania.

November 25, 1862.

ERROR to the District Court of Allegheny county.

D. W. & A. S. Bell, for plaintiff in error, denied the liability of McGonigle to pay an assessment made for more than to the middle of the street — that to assess the whole width upon his lot would not be an "equal assessment," as required by Act of April 5th 1849. The ground opposite has an owner. By Act of September 4th 1787, the Common was laid out for the use of the lotholders of the town, but the legal title remained in the state. By Act of April 13th 1840, the title of the state was conveyed to the city of Allegheny, as is now owned by the city, subject to the right of common: Mayor, &c., of Allegheny v. Ohio and Penna. Railroad Co., 2 Casey 358.

The acts on this subject do not confine assessments to grounds benefited by the improvement. The city has paved and paid for grading and paving several streets crossing the Common, on the ground that the city owns the land abutting on said streets.

S. Schoyer, Jr., for defendant in error.—The Acts of Assembly on this subject require that the city grade, pave, &c., and be "reimbursed" by the owners of lots fronting on the streets.

Private and not public property was intended in making the assessments, because private property is enhanced in value by the improvement, and because also the words of the Act of 1849 clearly intimate it. The Common is for public uses. See 12 S. & R. 29; 7 Watts 394. Its value cannot be enhanced by this improvement; nor can it be made subject to a lien. The city cannot sue itself; nor is the writ of levari facias commonly used against corporations.

The right of common is not "property" within the meaning of these laws; nor do they limit the liability of lot-owners to the middle of the street, but require payment of the whole cost to be assessed on private property fronting on the improved street. The defendant's property is improved by this paving, and the existence of the Common opposite is a great advantage to him. As to the streets heretofore paved by the city, through the Common, the cases are not alike, and even if they were, the city has a right at any time to correct her errors.

The opinion of the court was delivered, November 25th 1862, by WOODWARD, J.

The case stated presents, with admirable singleness and clearness, the question that is up for judgment. The question is whether under the several Acts of Assembly relating to the subject, a lot-owner on Union avenue...