Boyle v. Hazleton Borough

Opinion by Mb. Justice McCobuum, The principal questions raised by this appeal are, (1) whether Rausch dug the sewer ditch at the intersection of Fern and Laurel streets under a lawful permit from the municipal authorities, and (2) whether the learned court erred in holding that there could be no recovery against the borough. Section 3 of the ordinance in relation to streets and alleys provides that “ it shall not be lawful for any person, company, corporation or their employees to open, dig, or in any way disturb any street or alley without first applying to the street commissioner and obtaining a written permission for that purpose,” and makes it the duty of such commissioner to “ see that all persons to whom permits are so granted shall restore the street- or alley to as good condition as before being opened, dug or disturbed.” It is conceded that no permit was issued to Rausch under this [175] ordinance, but it is claimed that a permit was issued to him by the burgess under section 1 of the ordinance in regard to building permits, which authorized him to dig the ditch. The learned court below thought that to authorize an opening in the street of this character the borough ordinance required that the written permission of the street commissioner should be first obtained, but, inasmuch as the burgess testified that it was his habit and the habit of his predecessor in office to issue permits to make such openings, the ditch must be regarded as dug under a valid municipal license. The permit issued by the burgess and relied on to legalize the work done by Rausch at the intersection of Fern and Laurel streets simply allowed him to lay a drain on Church street, but, as he testified that it was given on his verbal application for leave to dig a ditch at the former place, the insertion of the words “ Church street ” was considered as a clerical mistake, and the permit as containing a license to do the work complained of. It should'be stated in connection with the foregoing reference to the testimony and the conclusions of the court that the ordinance which authorized the burgess to issue permits required that he should describe in them the place where the work was to be performed, and that he occasionally delegated his power under it to a policeman. It also required that the permit should be obtained before the commencement of the work, while the evidence in this case would fairly sustain an inference that the permit in question was issued after the accident. We agree with the learned court below that under the ordinances of the borough Rausch was bound to obtain from the street commissioner written permission to dig the ditch before proceeding to do so, but we cannot concur in its conclusion that a permit from the burgess to lay a drain on Church street authorized him to dig a ditch at the intersection of Fern and Laurel streets. The burgess was not empowered by any ordinance to grant a permit to any person, company or corporation to open, dig or in any way disturb any street or alley within the borough, but, as we have already seen, the power to do so was expressly committed to the street commissioner. If the burgess was in the habit of assuming and exercising powers not vested in him but plainly delegated to another, such habit may be considered as a violation of the borough ordinances but [176] not as a nullification of them. No number of violations of them will constitute or establish a custom or usage which the law will recognize as of any validity. We cannot therefore regard the evidence in relation to the habit of the burgess, and of his predecessor in office, as a warrant for giving to the permit in question the effect of a permit issued in accordance with section 3 of the ordinance which declares it to be unlawful for any person, company or corporation to open, dig or in any way disturb any street or alley in the borough without a written permission from the street commissioner. The validity of this ordinance is not questioned and the work done by Rausch was in contravention of it. In digging the sewer ditch without the written permission of the street commissioner he was a trespasser, aud if his work rendered the street unsafe for ordinary travel it was the duty of the borough authorities, having actual or constructive notice of the dangerous condition created by him, to take proper measures to protect the public against it. In ojther words a municipality cannot tolerate unlawful and dangerous obstructions on its streets and claim exemption from liability for injuries caused by them. The cases cited to sustain the borough’s contention that it is not liable to the plaintiff for the injury she received in consequence of the work done by Rausch, are not applicable to the facts of this case. They are cases in which the work was done under a contract with or license from the municipality, while in this case the work was done without its permission and in violation of its laws. We see no occasion, and we are not disposed, to go a hair’s breadth beyond them in relaxing the supervision by a municipality of the streets within it. The specifications of error are sustained. Judgment reversed and venire facias de novo awarded.