McLain v. West Washington Borough

Opinion by Porter, J., The plaintiffs, on May 1, 1905, presented their petition to the court below, alleging that their property abutting on West Chestnut street, in the borough of West Washington, had been damaged by the grading of that street by said borough, and praying for the appointment of viewers under the provisions of the Act of May 24, 1878, P. L. 129. The court appointed viewers as prayed for, the viewers reported, the defendant borough appealed, and from the resulting jury trial we have this appeal by the borough. It is an undisputed fact that the borough proceeded in a regular manner to grade West Chestnut street, and prior to undertaking such work and during the execution thereof, through its duly authorized representatives, took all the steps required by law in the case of grading a street which it had jurisdiction to thus improve. The only question is whether West Chestnut street was a street, within the meaning of the act of May 24, 1878, the material provisions of which are as follows ^ “In all cases where the proper authorities of any borough, within this Commonwealth, have or may hereafter change the grade or lines of any street or alley, or in any way alter or enlarge the same, thereby causing damage to the owner or owners of property abutting thereon, without the consent of such owner, or in case they fail to agree with the owner thereof for the proper compensation for the damage so done or likely to be done or sustained by reason thereof;” the statute then proceeds to authorize the court of common pleas of the proper county to appoint viewers, provides for the manner of proceeding by the viewers and for an appeal from their report. The contention of the defendant borough is, that what is now known as West Chestnut street, within the limits of the borough, was a part pf the road known as the “National or Cumberland Road,” and that being a part of said road, it does not come within the operation of the statute in question. The fact that the street [475] is a part of the old “National Road” cannot, under the evidence in this case, be questioned. The evidence clearly indicated that that part of the National road within the borough limits had for a considerable period of time been known as West Chestnut street, in the borough of West Washington, and had been kept in repair by and was under the control of the borough authorities, and that fact is conceded by the learned counsel for the appellant. The grading in question resulted in a substantial change from the grade at which the street had been for many years maintained. If. the borough had authority to change the grade and that change resulted in damage to the property of the plaintiffs, then it was such an injury as would entitle the plaintiffs to compensation, under article XVI, section 8, of the Constitution of 1874. The Act of April 3, 1851, P. L. 320, section 2, expressly delegates to boroughs the power “ To regulate the roads, streets, lanes, alleys, courts, .... and the heights, grades, widths, slopes and forms thereof; and they shall have all needful jurisdiction over the same.” The authority to grade all streets and roads within the corporate limits is among the implied powers of a municipal corporation: City of Williamsport v. Commonwealth, 84 Pa. 493. The act of 1878 is a remedy given to enforce the right guaranteed by the constitution, and it should receive a liberal construction: Borough of New Brighton v. United Presbyterian Church, 96 Pa. 331. The terms “ street or alley,” as used in that statute, include all highways which the borough has the authority to grade, alter and change, and it was held in Power v. Borough of Ridgway, 149 Pa. 317, that for damages resulting to property from change in the abutments of a bridge, which was part of a highway, this statute afforded an appropriate remedy. That a borough is authorized to change, within the borough limits, the grade of a road which extends beyond the line of the borough and which was not laid out by the authorities of the borough; and that, in such a case, an owner of property injured may have his damages ascertained under the provisions of the act of 1878, has been definitely decided: Norristown’s Appeal, 3 Walker, 146 ; White v. Borough of McKeesport, 101 Pa. 394. The jurisdiction of the court of quarter sessions to authorize the laying out of a township road lead [476] ing from a township into or through a borough, or to vacate such a road, cannot be questioned: Somerset and Stoystown Road, 74 Pa. 61; South Chester Road, 80 Pa. 370; Palo Alto Road, 160 Pa. 104. But the power to fix the grade of such a road within the borough lines, and to change it from time to time, is by law vested in the borough authorities : Rothwell v. California Borough, 21 Pa. Superior Ct. 234. If there is any special or local statute which exempts the National or Cumberland road from the general power of municipalities to change the grade of all public roads within their limits, such local statute was not offered in evidence in the court below, nor has it been called to the attention of this court. Upon the case as presented, the borough was authorized .to change the grade of the street in question, and the plaintiffs were entitled to have their damages assessed under the provisions of the act of 1878. The assignments of error are dismissed. The judgment is affirmed.