Hobbs v. Shamokin Borough

Opinion by Williams, J., This was a proceeding to recover damages for an alleged change of grade. In 1906 an ordinance was passed providing for the curbing and paving of Market street. The appellee had [24] signed the petition therefor, which provided, inter alia, that “if it be necessary to change the grade on the said Market street in order to make good work of the paving, that they and each of them shall and will at his, her, their and each of their own proper expense, place a foot-walk np to the grade, and grade and curb in front of their and each of their properties without any cost to the borough.” The ordinance contained, inter alia, the following stipulation: “The Chief Burgess and Committee on Street and Highways in conjunction with the Borough Surveyor shall superintend the work under the contract.......” The contract was duly let and the work completed in 1909. It is conceded by the appellant that there was a physical change of grade which left the plaintiff’s houses from two to four feet below the level of the street. Under its two assignments of error appellant contends : 1. That there is no evidence that the plaintiff’s houses were erected according to the grade established by the borough. As the grade had remained at the elevation at which the plaintiff built for over thirty years, the presumption, in the absence of evidence to the contrary, is that it was the established grade or that there was no established grade and that the plaintiff had built at the natural level. Under such circumstances the plaintiff would be entitled to damages for the establishment of the grade at a different level: Borough of New Brighton v. United Presbyterian Church, 96 Pa. 331; Hendrick’s App., 103 Pa. 358. 2. That the plaintiff is barred by laches from prosecuting his claim. An important element of laches is wholly lacking, viz: that there has been a change in the status of the parties under the belief that plaintiff did not intend to assert his right; and that this change would inequitably accrue to the advantage of the plaintiff and the disadvantage [25] of the defendant or innocent third parties: see Philadelphia & Reading Coal & Iron Co. v. Schmidt, 254 Pa. 351, 356. 3. That the ordinance was not attached to the petition for the appointment of viewers. The record fails to show that this question was raised in the court below, but the ordinance was introduced in evidence, is now a part of the record, and, for the purposes of review, as well as of trial, the pleadings were in such form that no harm could come to the defendant by the omission. 4. That the borough had not authorized a change of grade and the ordinance did not authorize it. The borough, having delegated the authority to its officers to construct the paving, provided for in the ordinance, according to specifications, cannot escape liability after the work, showing an admitted change of grade, has been accepted by the borough. Such an acceptance is a ratification of the acts of those authorized, and the borough is bound. 5. That the plaintiff, having signed the petition, was estopped from claiming damages. There is nothing in the petition signed by the plaintiff releasing the borough expressly or impliedly from the claim for damages to his property resulting from the change of grade. This is essential to raise an estoppel by contract: Dunn v. Tarentum Borough, 23 Pa. Superior Ct. 332; Jones v. Borough of Bangor, 144 Pa. 638. 6. That the act of assembly did not authorize an appeal from the decision of the viewers to the Common Pleas. This contention is not tenable. The Act of May 16, 1891, P. L. 75, expressly provides for the establishment and reestablishment of grades for streets and alleys. The cases cited by the appellant were decided under their peculiar facts and do not rule the present case. There was no knowledge here on the part of the plaintiff, nor any evidence of, an established grade. [26] The defendant was more favored in the trial of this case than it was entitled to expect. Benefits accruing to a property damaged are not general benefits common to the whole neighborhood, but must be some special advantage arising out of the improvement. The property owner, having paid his share of the cost of the improvement, is entitled to the general benefits arising therefrom: Greenawalt v. West Newton Borough, 64 Pa. Superior Ct. 576. The inferences arising from the facts were such that the court below could not have given binding instructions for the defendant: Menner v. Delaware & Hudson Canal Co., 7 Pa. Superior Ct. 135, nor entered judgment n. o. v. The judgment is affirmed.