Penrose Ferry Avenue

Opinion by Henderson, J., The question raised in this appeal was practically settled by the decisions in Howard Street, 142 Pa. 601, and Hare v. Rice, 142 Pa. 608; which were followed by Melon Street, 182 Pa. 897, and Morris v. Philadelphia, 199 Pa. 357. It was there held that while there was no constitutional obligation to pay damages resulting from vacating a street, it was within the power of the legislature to impose such burden on the commonwealth or its agents by statute, and that this had been effectually done by the 6th section of the Act of April 21, 1858, P. L. 385. By that act damages arising from the vacation of streets in the city of Philadelphia were grafted onto the general system of road damages, and the proceedings appropriate in cases of opening or widening streets were made applicable in vacation cases. As shown in Howard Street, supra, the legislature has put the vacation of streets on the same footing as to the damages thereby resulting to property owners, as the taking for opening or widening; and the assessment of damages and benefits, though condensed into one proceeding, is in effect the same as asssesments for benefits to be collected and of damages to be paid by the city. Under these decisions the statute imposes on the city liability in the first instance for damages resulting from vacating in like manner, as in the cases of opening or widening streets, and the mode of assessing damages and benefits is made the same. That the city should be so liable is a necessary conclusion if it be conceded that assessments for benefits may be made at all, for such assessments are only sustainable as a kind of local taxation upon those specially benefited. The power to impose such taxation implies liability on the part of the taxing power. The duty imposed upon road juries under the act “ to assess damages for the opening, widening, or vacating roads or streets ” puts the damages arising in [344] all such cases upon the same footing. The jury is to ascertain and report to the court first, “ what damages the parties claiming the same are entitled to; ” and second, “ to assess and apportion the same among and against such owners of land as would be benefited by such opening, widening or vacating such road or street.” This clearly implies that the person damaged by. the vacation of a street is to be compensated in the same manner as if the injury resulted from the opening or widening of a street, and such right is not contingent upon the fact that some other property owner may have been benefited to a greater or less degree by such vacation. To hinge the injured parties’ remuneration upon the advantage accruing to other property might amount in many instances to a denial of any compensation at all. The decisions to which we have referred have dispelled any obscurity which may have existed in the language of the statute. The city is liable for the payment of damages in such proceedings, with the right to recover from property owners specially benefited such contributions as may be assessed in accordance with law, unless by a two thirds vote of the councils, the city elects to pay all of the damages, thereby exempting the property owners benefited from contribution. The question now under consideration was not presented in Upsal Street, 22 Pa. Superior Ct. 150, and the portion of the opinion in that case cited by the appellant’s counsel was not necessary to the determination of the point there decided. It cannot be considered an adjudication of this court on the question we are now determining. The assignments are overruled and the decree of the court of quarter sessions is affirmed.