Chester City v. Lane

Opinion by Rice, P. J., The plaintiff filed a municipal claim for the cost of grading, curbing and paving the sidewalk or footway in front of the defendant’s lot. The items of the claim were, inter alia, as follows : Curbing 378.75 ft. @ 68 ct., $257.55; recurbing 23 ft. @ 8 ct., $1.84; paving 476.3 sq. yds. @ 67 ct., $319.12; grading 619 cu. yds. @ 20 ct., $123.80; penalty $35.55. It is alleged in the affidavit of defense that the charge for grading was “ for grading or cutting down an embankment in front of defendant’s property, about the full width of said sidewalk and averaging about five feet in height, which grading was necessary before said curbing and paving could be done, in order — 363 — that the said sidewalk would conform to the grade of the .roadway ; also that the roadway was graded by the city. There is no denial in the replication of either of these allegations ; on the contrary, it is expressly admitted therein that “ in order to perform the said work of laying said pavement, it is necessary to do, and the said city caused to be done, the grading or cutting down of an embankment in front of defendant’s property, of the height and character as in said affidavit of defense fully set forth.” The first question which arises upon the undisputed facts is, whether the city, having graded the roadway at the general expense, had authority to require the defendant to cut down this embankment so as to make the grade of the footwalk conform to the grade of the roadway, and, upon her default, could cause the work to be done and assess the costs against her property. The authority to require her to do this work is supposed to be derived from section 1 of the Act of April 2, 1867, P. L. 677, special to the city of Chester, which provides that the mayor and council shall have power, “To require and direct the grading, curbing, paving and guttering of the side or footways by the owner or owners of the lots of ground respectively fronting thereon in accordance with the general regulations prescribed.” We will not stop to discuss the question whether this section was superseded by clause 11, section 8, article 5 of the Third Class City Act of May 23, 1889, P. L. 277, which does not mention grading; for, even if it be conceded that it is still in force, it must also be conceded that the power conferred thereby is not broader than that conferred upon boroughs by the act of 1851; indeed the above quoted clause is identical in language with clause 5, section 2 of the latter act. This clause of the borough act was most elaborately and thoroughly considered in Steelton Borough v. Booser, 162 Pa. 630. In the course of his discussion of the power of the borough to compel a property owner to grade a footway in front of his lot Judge McPherson, whose opinion was adopted by the Supreme Court, said: “ The grading of a street may be paid for in different ways. Either the public treasury may bear the cost, or if the statutory authority exists, the cost may be assessed upon the land which is benefited by the improvement. Either method takes the expense of the whole — 364 — work and divides it ratably among those who are to pay; but to divide the work into sections and to call upon the abutting owners to pay for what is done in front of their respective properties would hardly ever be fair and might often be grossly unjust. An owner in front of whose land a cut or a fill was necessary, or blasting needed to be done, or a wall was required to hold up the soil, would thus be compelled to pay considerable sums while his adjoining neighbor might pay comparatively little although benefited just as much.” The remarks of Judge W. D. Porter, speaking for our court, are equally forcible and pertinent: “ When it comes to changing a street from its .natural grade to one established by the city, or from one established grade to another subsequently adopted, a,n entirely different question is presented; the general interests of the municipality become involved. One property owner cannot be presumed to have a peculiar interest in the grade of any particular part of the street, nor to 'be peculiarly fitted or able to perform the work with promptness and convenience. If it be conceded that a property owner may, under the guise of a police regulation, be required to pay for a part of the grading done immediately in front of his lot, it is difficult to comprehend where the limitation is to be fixed which will determine what part he may be called upon to pay. If a property owner may be called upon to pay for grading the sidewalk when the street is cut or filled five feét, the question of the amount of cutting or filling is not material to the application of the principle, and he could as well be called upon to pay if the change of the grade made by the city in front of his property were fifty feet. It would thus happen that those who were farthest above or below the grade to which the city had brought the street would have imposed upon them an excessive charge for the cost of changing the street from its natural, or former established grade: ” Philadelphia v. Weaver, 14 Pa. Superior Ct. 293. “Certainly,” said Judge McPherson, “the same word may have different meanings when applied to different situations ; this is trae as to ‘ leveling,’ and if the view herein taken is correct, to ‘grade,’ also, may mean one thing when the borough’s duty toward one of its streets is being considered, and may easily and naturally bear a similar but less extensive meaning when the subject of attention is the lot owner’s duty — 365 — toward the sidewalk. A definition in a dictionary is not conclusive ; it merely helps in the search for the legislative meaning.” From these and other considerations very fully elaborated in the foregoing cases the conclusion was reached in the Steelton case, that in conferring the power upon boroughs to compel each property owner to grade and pave the footway in front of his premises the legislature contemplated a street, “ so nearly ready for the pavement that nothing more is needed than ordinary leveling, and thus presenting a surface upon which each owner may pave at practically equal cost,” and in the Weaver case, the Act of April 16, 1838, P. L. 626, being before the court for consideration, that the grading “ here referred to is only such as is incidental to the sidewalk, as distinguished from the general grade of the street,” and that “ the act does not warrant the city in imposing upon lot owners the burden of grading the sidewalks in front of their property, in order to meet a change of conditions resulting from the act of the city in cutting down or filling up the cartway.” But it is argued that if these decisions rule this case, they only do so as to the excess of the cost of grading beyond the cost of ordinary leveling. The answer is twofold: First,'the charge for paving covers the cost of grading up to the depth of ten inches. This was not included in the item for grading because the contract between the city and the use plaintiff expressly provided that no allowance should be made for grading under ten inches in depth. This provision did not mean that the contractor should do the grading to that extent without pay, but that the stipulated compensation for paving was made large enough to cover grading to that extent. This was the amount of excavating which the parties deemed incidental to the curbing and paving proper, and there is nothing in the case to show that the ordinary leveling, which in the circumstances the defendant could have been required to do, would include more. If it would include more, the plaintiff ought to have, alleged it, or the facts from which it could be inferred, in his replication. Second, the defendant could not be in default until the substantial grading, which was required to bring the street to the point where nothing more was needed than ordinary leveling, had been' done. Nor was the defendant in default after that point had been reached, as will be seen when we — 366 — come to consider the defense to the charge for curbing and paving. As the affidavit of defense alleges that the embankment averaged five feet in height, it is inferable that there were places where it did not have that height and other places where it exceeded it. But as is well said by the appellee’s counsel a property owner is not compelled to select spots here and there and curb and pave them if he be notified to do the work as an entirety. As a general proposition this is true: if there were any special circumstances making this case an exception to the general rule they ought to have been alleged by the plaintiff. Under the authorities above referred to the defense to the item for grading was prima facie valid, and as it was not rebutted by the replication the court was right in holding that as to that item the plaintiff was not entitled to recover. The second question is as to the liability of the defendant for the items of the claim for curbing and paving, and the right of the plaintiff to file a lien therefor. The facts pertinent to this question, alleged by the defendant and not denied in the replication, are thus stated in the affidavit of defense: “ Defendant says that she has repeatedly notified the said plaintiff that she would curb and pave the said sidewalk or footway upon the said city doing the grading, which said grading was a necessity in order to make the said curbing and paving possible. No notice was given to said defendant to do said curbing and paving after the grading had been done, and the said embankment had been cut down, nor was there any opportunity given her to do the same, notwithstanding her readiness and willingness, and the fact that she was about to enter into a contract to have same done, and notwithstanding express notice to the said city of Chester and James Robinson, the contractor, that if they or either of them did said curbing and paving, that she would refuse to pay for same.” We had occasion very recently to consider the question of the liability of a property owner for the cost of curbing and paving the footway in front of his premises, where he had not been notified to make the improvement: Pittsburg v. Biggert, 23 Pa. Superior Ct. 540. “ Such duty arises under the statute when, and not until, the municipality by a valid ordinance has “ required ” him to make the improvement,- and in. order that he may have opportunity — 367 — to perform it, has notified him. The right to do the work himself, if he is able to do it properly, or if not, to make the best bargain he can for the materials and work required, is a valuable right, of which the municipality cannot arbitrarily deprive him, and then hold him liable for what, according to the estimate of a jury based on evidence of the going prices of such work and materials, it would have cost him. In the absence of waiver or ground of estoppel notice seems to be as essential to the imposition of the duty to make the improvement as the enactment of the ordinance; and where there is no duty there can be no default, and, therefore, no consequent liability to reimburse the municipality for the amount it voluntarily expended.” In the present case the defendant, although notified to grade, curb and pave, was not given an opportunity to discharge the duty devolving upon her. Under the undisputed facts the principle applied in the Biggert case and in Philadelphia v. Edwards, 78 Pa. 62, Connellsville Boro. v. Gilmore, 15 W. N. C. 348, and Philadelphia v. Dungan, 124 Pa. 52, was applicable here. It follows that the court was right in entering judgment for the defendant on the whole record, as provided in sec. 19 of the Act of June 4,1901, P. L. 364. J udgment- affirmed.