Pottsville v. Jones

Opinion by Kephart, J., The first páving which exempts an abutting property owner from liability for any subsequent improvement, is one that is put down originally or adopted or acquiesced in subsequently by the municipal authority for the purpose, and with the intent of changing an ordinary road into a street: Philadelphia v. Eddleman, 169 Pa. 452. Two elements are necessary to evidence this fact: the character of the construction and the intention of the municipality to convert a common road into a permanently improved street. The controlling consideration, however, is affirmative municipal intention. This intention may be shown by an original ordinance directing the construction or by acquiescence or adoption. It can never be assumed. It must be proven. The sufficiency of the evidence showing intention is always for the court, but where the evidence is sufficient to warrant a finding of intention, it is for the jury, generally, to find it as a fact: Harrisburg v. Funk, 200 Pa. 348. Adoption or acquiescence, as showing municipal intention must be limited and confined to acts which deal with the highway as an improved street, and consists of such acts which recognize the construction employed and the results obtained as being- sufficient to stamp upon the particular highway the fact of a permanently improved street as such term is generally known, and those rules and ordinances of the municipality which provide better projection for such street than an ordinary dirt road, by those who use and occupy it, as water companies, gas companies, etc., and the conduct of the municipality itself, through its proper offices, or the minutes or ordinances of the council, in recognizing this construction as being of a permanent nature, treating it in the same manner as an unquestionable paved thoroughfare of the municipality, these are acts which tend to show municipal in [187] tention. The most difficult feature of all these cases is the evidence necessary to establish this intention and each case must to a large extent rest on its own facts. Such acts of the municipality which recognize the highway as a highway and provide for the safety, convenience, comfort and security of the citizens living along or using it, are not acts which recognize or show an intention of adopting a system of construction as being equivalent to a permanent improvement such as would relieve an abutting property owner from liability for municipal improvements: Dick v. Philadelphia, 197 Pa. 467; Philadelphia v. Hafer, 38 Pa. Superior Ct. 382. All of these acts are such as could, by municipal authority, be done on and along an ordinary dirt road. It would not be contended that they would be sufficient to change such highway into an original improvement to relieve liability. The municipality has exclusive right to determine, in the public interest, when, how and with what material a conversion from an ordinary road into a street shall take place. While no particular material is necessary to constitute such pavement, it may be made of anything which will produce a hard, firm, smooth surface for travel. There is no question but that macadamizing may be regarded as a first paving if it was the intention of the municipal authorities to so use it: Philadelphia v. Eddleman, supra; Philadelphia v. Hafer, supra; Harrisburg v. Funk, supra; Dick v. Philadelphia, supra. But macadamizing of the present day covers a variety of road construction. Some of it could scarcely be considered as being sufficient to convert an ordinary highway into an improved street, unless we regard any work being done on a highway, apart from scraping the dirt from the ditches to the center of the road, as effecting that result. It is therefore important, when dealing with the question, that the character of the work be shown. The construction in this case consisted of tearing up the streets and a large part of it was made by placing large stones on end, rolling them with a steam [188] roller, placing on this a layer of trap rock and screenings, which was watered and rolled to make a firm, hard surface. This is what is sometimes called water bound macadam, and when properly done is quite expensive. It would be such construction, if the municipal authorities had so intended, as would amount to a first paving. As evidence of intention, a number of minutes of council were introduced, wherein the reports had been made by the borough officers. They showed the progress made in the macadamizing of the various streets, and council treated it as a special kind of construction. It was further shown that three squares of Market street, from Center to Fourth streets, had been macadamized in the same manner and under the same circumstances as the street in front of appellee’s property, and were later paved, at the city’s expense, with vitrified brick upon a concrete foundation. This is some evidence of intention. By ordinance the city exacted a charge for permits for openings in macadamized streets and there distinguished that street from the ordinary street. All this evidence' was sufficient to submit to the jury from which they .might find an intention to adopt or regard the construction as a first paving. The jury found that the municipality did so intend. It is not conclusive against such intention that the cost of the first paving was not provided for from any specific appropriation, but paid out of the general revenue, nor is the fact that no formal ordinance directed the work to be done. We do not think the court committed any substantial error in the answers to the several points submitted. The question for the jury’s consideration was the intention of the municipality and while any one of the several items of evidence would not, of itself, amount td an intention, all of them, with other evidence, were sufficient to submit to the jury from which intention might be found. The court was clearly right in so answering the several points submitted. A too rigid construction is placed upon the defendant’s fifth point. The word “acquiesce” was used in con [189] nection with adoption and ratification, and as thus put the point was correctly affirmed. The exceptions to the offers of evidence cannot be sustained. The time within which this particular macadamizing was done was sufficiently shown by the minutes of council. The evidence relative to the macadamizing of other streets in the borough, which had been offered for the purpose of showing a system of improved street construction, was clearly admissible and the objection to the ordinance providing for a charge for permits for opening macadamized streets, as distinguished from other streets, was properly overruled, the ordinance was some evidence of intention. Nor was the plaintiff estopped from defending this litigation because he had requested the council, when they were about to make the new improvement, that wood block instead of vitrified brick be used. It did not bind him to anything and was merely a request. It did not initiate any action or aid in the initiation of any action. The ease was carefully tried, the charge of the court was full and comprehensive, covering all of the various legal matters presented, and the judgment should not be disturbed. The assignments of error are overruled and the judgment is affirmed.