Western Pennsylvania Railway Co. v. City of Allegheny
| Decision Date | 24 November 1879 |
| Parties | Western Pennsylvania Railway Company <I>versus</I> The City of Allegheny. |
| Court | Pennsylvania Supreme Court |
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON and TRUNKEY, JJ. STERRETT and GREEN, JJ., absent
Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 79.
Hampton & Dalzell, for plaintiff in error.—To entitle a municipal corporation to recover the cost of improvements, it must comply with all the conditions precedent, whether prescribed by charter or ordinance: Dillon on Municipal Corp., vol. 2, sect. 649, City of Pittsburgh v. Walter, 19 P. F. Smith 365; Lowell v. French, 6 Cush. 223; City of Lowell v. Wheelock, 11 Id. 391.
Applying this proposition to the present case, we find by the special verdict, that Church avenue was not graded and paved on the line fixed by the ordinance for its location and opening. It is not now of a uniform width of thirty feet within the lines of its location, but encroaches upon the property of the Western Pennsylvania Railroad Company, to the extent of one-half of the width of the stone-wall for a distance of 682 feet. The city is, therefore, a confessed trespasser upon the company's property.
There is no principle of law, that should compel the company to pay for the part of the wall claimed to be constructed inside of the street line. The right to enforce the lien in this case, rests upon the legal and faithful performance of the work for which payment is claimed. There has been no such performance, but on the contrary a trespass upon private property has been committed, and an attempt is now made to justify the illegal act as a whole, by setting up the legality of a part of it. We insist upon a credit of $1987.02, as justly belonging to the company.
W. B. Rodgers, City Solicitor, contra.—The wall was necessary; its erection did not increase the cost of the work; the railroad is relieved of that portion built upon its property. What justice would there be in going further? The building of the wall upon this location, increased instead of diminished the width of the street. The deviation is but a small one. The street is still substantially on the location of Church avenue. It cannot be contended, that where the side-walk of a street was constructed for a few feet over upon private property, therefore, no recovery could be had for the portion of that pavement rightly located. If not, then neither can the railroad company's position be sustained. To follow it to its logical conclusion, there could be no recovery for any portion of the cost of the street. The city has improved the whole of Church avenue. All the work done beyond the line of the avenue, was in excess of its authority, but its right to recover is only taken away as to the cost of such excess.
...
To continue reading
Request your trial
-
Commonwealth v. Allied Building Credits, Inc.
...123 A.2d 686 385 Pa. 370 COMMONWEALTH of Pennsylvania, Appellant, v. ALLIED BUILDING CREDITS. Inc., Appellee ... Commonwealth v. Quaker City Cab Co., 29 Dauphin 90, ... 287 Pa. 161, 277 U.S. 389; ... least an uncertain lien (Western Penna. Ry. Co. v ... Allegheny, 92 Pa. 100, 103; Scranton ... ...
-
City of Springfield v. Baxter
... ... 1, Sec. 396, and cases cited; 28 ... Cyc. 1108; Western Pennsylvania Ry. Co. v. City of ... Allegheny, 92 Pa. 100; Richter v ... ...
-
City of Springfield v. Baxter
...fee nor the easement. See Page and Jones on Taxation by Assessment, vol. 1, § 396, and cases cited; 28 Cyc. 1108; Western Pennsylvania Ry. Co. v. City of Allegheny, 92 Pa. 100; Richter v. Mayor, etc., of City of New York, 24 Misc. Rep. 613, 54 N. Y. Supp. 150; In re Cheesebrough, 78 N. Y. 2......
-
Borough of Avonmore v. Taylor
... ... the city: Reilly v. Philadelphia, 60 Pa. 467; ... Pepper v. lphia, 114 Pa. 96; Western Pa ... Ry. Co. v. Allegheny, 92 Pa. 100; Fell v ... ...