Burgess v. Tarbottom

Opinion by Oblad y, J., The second section of the Act of May 15, 1889, P. L. 220, under which the municipal lien in this case Was filed, provides, that, “ whenever any borough shall determine to construct any public sewer, it shall have power, by ordinance or ordinances duly passed, to assess the cost thereof as a sewage tax upon the property adjoining or adjacent to the same, either by the foot front or in such other manner and in such proportions and amounts, as to the burgess and town counsel may seem just and equitable,” etc. It is admitted that the land attempted to be liened does not front or abut upon the street in which the public sewer is constructed, and this gives rise to the only question in this case. In Whitman v. Reading, 169 Pa. 375, and in Park Avenue Sewers, 169 Pa. 433, it was determined that no proper [417] ties can be assessed for tbe cost of a sewer, except those that abut on the line of it. “ It was held in Morewood Avenue, 159 Pa. 20, and repeated in Fifty-fourth Street, 165 Pa. 8, that assessments for local improvements by paving must be confined to property abutting on the street so improved. It is not easy to see any valid distinction in this respect between improvements by a pavement and improvements by a sewer, and there are very strong reasons why no such distinction should be recognized. It is clear that lots having no present connection with the sewer in question derive no advantage from it, further than the general improvement and healthfulness of the neighborhood, which is common to the whole public. Nor does it appear that they will certainly have any special benefit, for the sewer connections on the plan may be changed, or if left on paper may never be carried out. To impose a present lien and obligation to pay when the present benefit is future and contingent on the will of the municipality, would be a clear violation of the fundamental basis on which all such assessments rest: ” Beechwood Avenue Sewer, 179 Pa. 490. These decisions are in cases arising under other acts of assembly, but the reasons given are alike applicable to the act under consideration. The defendant’s property is on a street at right angles to the one in which the sewer is constructed, and is one hundred feet distant from the sewered street. By the fourth section of the act of 1889, the municipal authorities, for the preservation of the public health or other causes, are empowered to compel property owners to make a connection with a sewer, “whenever such property abuts upon or is within fifty feet of a sewer main or branch thereof, in the same manner and under the same regulations as other connections with said sewer are made.” If there is any doubt as to the legislative meaning in using the words “ adjoining or adjacent ” it should not apply to property more remote from the sewer than that which the borough could require being connected with it by compulsory process. The defendant’s lot abuts on Second street and would be liable for an assessment for a sewer on that street, and this lien for the assessment for a sewer on Walnut street was properly stricken from the record. The judgment is affirmed.