City of Philadelphia v. Yewdall

Opinion by Mr. Justice Williams, This is a proceeding upon a municipal lien for paving done upon Fifty-second street by the city of Philadelphia. The defendant denies his liability to the city because the street had been previously paved under the direction of the city at the expense of the lot holders. The paving for which this lien was filed was, as he alleges, a repaving done by thejfitv for public reasons, at the expense of the-city,-and.there-fcremut»draigmkle tqjihe lot holders aiongjlhe strpet. The facts upon which this [415] question is raised were not controverted in tbe court below, but were submitted upon a ease stated. It appeared by the ease stated that Fifty-second street had been opened originally with a breadth of sixty feet, and had been paved with rubble pavement, under an ordinance approved on the.21st day of April, 1878, The foot pavements were thirteen feet wide on each side of the street and the cartway had a breadth of thirty-four feet. In February, 1884, the breadth of this street was increased from sixty to eighty feet. The addition appears to have been made on the westerly side of the street. The walks on each side were given a breadth of fifteen instead of thirteen feet as before, thus leaving a cartway fifty feet. By an ordinance approved on April 9, 1894, the department of public works was directed to repave this part of Fifty-second street with granite, and that payment therefor should '‘be made from item 26 and item 261,, section 4, of the appropriation to the department of public works (burean of highways) for the year 1894.” The repaving was done with asphaltum, and the action of the department in so doing was ratified by councils. Several months after the completion of work upon the repaving, liens were filed against lot owners for the cost of the work done on “ the said widened portion of Fifty-second street.” 'Flus means that, notwithstanding the ordinance of April, 1894, the city has attempted to treat the work done on the street as a repavement only within the lines of the old cartway, and to treat that done outside the old cartway as an original pavement, ami charge its cost to the lot holders. This overlooks the fact that the foot walks had been paved at tbe expense of the lot owners as truly as the cartway, and that the street at a breadth of sixty feet was, at the time when the increase in width was decided on, a finished street, with curbs and foot pavements, as well as a paved cartway, all laid under the direction of the city. What tbe city accomplished by tbe ordinance adding twenty feet to tbe width of tbe street was to appropriate the foot walks on the westerly side of the street to the cartway, and compel the lot holders to build new ones on at least fifteen feet of tbe ground that bad been taken off tbe fronts of their lots to secure the requisite width of eighty feet for the street. At the utmost there could have been but five feet of original paving in the cartway; and the city councils, in the preparation and passage [416] of the ordinance of April, 1894, directing the repaving of this street, disregarded this, and provided for payment for the entire cost of the work, as a repavement, out of the city treasury: Alcorn v. City of Philadelphia, 112 Pa. 494, and Slocum v. City of Philadelphia, 11 W. N. C. 167, are cited as cases supporting the lien filed in this case. If the paving as to five feet had been done at the cost of the owners, and the lien had been filed for that only, the cases cited would be applicable. In both of them the controversy was over the power of the 'city to change its plan and require that part of the street to be paved which it had previously devoted to some purpose other than public travel and therefore left unpaved. We upheld the right of the city to change its plans, and, as beyond all question the ground so added to the cartway had never been paved at all, we sustained the claim of the city that the lot owner was liable for the cost of paving, because it was an original pavement. In this case the strip of additional pavement was made necessary, not by devoting'a part of the street to the purposes of travel which had previously been devoted to some other purpose, but by the acquisition by the city of additional surface and the incorporation of it into the cartway for the purpose of increasing its width as a highway. The width is not thus made exceptional, but is within limits deemed reasonable and desirable in this and other municipalities. It is not suggested that the improvement was objected to by any lot holder, or that it was deemed unnecessary by any person interested. It is not easy therefore to see any real distinction between the cases cited above, and the cases now before us as to the liability of the lot holder to the city for paving upon the hitherto unpaved portion of the street. When the pavement was laid upon this part of the cartway the ground upon which it was laid was clearly within the street, it had never been paved before, a city ordinance directed the pavement of the street at its then width, and the duty of the lot holder to pay, so far as the pavement was an original one, resulted as clearly as it did in Alcorn v. The City, supra. The only possible distinction to be made between tbe latter case and this one relates to the time when the unpaved ground became a part of the highway. In Alcorn v. The City the ground belonged to the street when the original paving was done. ■ In this case the unpaved ground was acquired after the [417] rubble pavement on Fifty-second street had been laid. Bu when the city required the paving of the heretofore unpaved space, it was in the street as fully and effectually in one case as in the other; the city had as complete jurisdiction of the subject of the paving of Fifty-second street as it had of Broad street; the obligations of the lot owners upon the street were the same. But this question is not necessarily involved in this case. No lien has been filed for the cost of paving the three or five feet not heretofore paved in Fifty-second street. The city has proceeded upon an entirely different theory. It has claimed for the paving as part of the cartway of the old foot pavement which had been paved at the expense of the lot holders before the widening took place. The case stated was drawn upon the same theory, and provides for no judgment for the plaintiff except one that shall cover the cost of paving the sixteen feet which have been added to the original cartway. This, in view of the ordinance under which the paving was done, was probably deemed best, as the only question thus raised was whether the curbed and paved foot walk was to be deemed a part of the paved street. Upon that question the court below was right, and the judgment in favor of the defendant is now affirmed. The opinion, of which this is a copy, having been written by Mr. Justice Williams, to whom the case had been duly assigned, was read by him in consultation and approved, but, owing to his sickness and absence, was not filed, the same is now adopted and filed as the opinion of the Court. Per Curiam.