York City v. Holtzapple

Opinion by Kephart, J., We have frequently stated the rule that will relieve abutting property owners from 'liability for subsequent street improvements. It is unnecessary to repeat it. Philadelphia v. Kerchner, 62 Pa. Superior Ct. 562; Pottsville v. Jones, 63 Pa. Superior Ct. 180; Easton City v. Hughes, not yet reported. The work claimed as an original paving was done in 1874, under the authority of council. It consisted of spreading limestone ballast evenly over the roadway, converted into a hard surface by the passing traffic, and kept in repair by placing loose stones in the holes or ruts. Without other evidences of intention, this would not be such paving as would exempt the abutting owner from liability for future improvements: Harrisburg v. Funk, 200 Pa. 348. Evidence of the same character of work done on other streets would not supply such intention. Indeed it could scarcely be considered as being more than repairs done to an ordinary dirt road, where the traffic is heavy. “While due effect must be given to the character of the work done in determining municipal intention, when that work is macadamizing, without other ample evidence, it will not be sufficient to show municipal intention. There must be additional evidence of this fact”: Easton City v. Hughes, supra. Describing the work as macadam by witnesses or in reports, furnishes no information as to the manner of construction and the materials entering into its construction. A witness cannot testify that certain methods of construction were employed to change an ordinary dirt street to a permanently improved highway. This calls for a conclusion. The “change” called for is expressive of the municipal intention and such inten [602] tion must be established by evidence apart from the work done. The testimony of Heltzel and others was therefore properly rejected. We said in Pottsville v. Jones, supra, that rules and ordinances of council might properly be considered. If the ordinance of 1906 intended to and did embrace the construction done in 1871, it might have been proper evidence, but there was no evidence of this fact. There is nothing in the ordinance which indicates such intention. The court was correct in holding that the ordinance was too remote from the time when the work was done to be evidence of intention as applied to this particular street. If we regard the experimental work done in 1903 as being macadam, this ordinance alone would not be sufficient evidence to establish municipal intention. Especially is this true when the work of 1903 was done by the highway committee under an ordinance approved in 1889, which provides: “Said committee..... .shall have general charge of, care and oversight of the ordinary repairs of all streets, alleys, highways, water courses •......pavings, gutters......of the city, and shall enter into contracts for labor and material necessary for the same.” It was clearly the intention of this ordinance that if this committee wanted to make any permanent improvement it must go back to council for authority. To have ratified this work as a permanent improvement in the face of this ordinance required some act on the part of council clearly expressive of an intention to adopt it as such. The report of the borough engineer was not approved by council. It would not have been evidence of municipal intention if it had been, as there is nothing to show that council knew what sort of construction was embodied under the term “macadam.” This report was made in 1893 — twenty-three years after the work here claimed as a permanent improvement was done. The ordinance of 1900 was a mere police regulhtion affecting all highways without regard to the character of streets. [603] Considering the report of the engineer, the ordinance of 1906, and the testimony as to the manner in which other highways had been constructed, these offers, with the other evidence, would fall far short of showing an intention to adopt the construction of 1874 as a permanent improvement. It was the duty of the court to determine the sufficiency of the evidence as showing municipal intention (Pottsville v. Jones, supra), and in so doing we can find no error in its determination of that question. The city offered the lien as prima facie evidence under the act. None of its terms were denied. The fourth paragraph recited the acts and ordinances under which the work was done, and the lien filed. These ordinances provided for the payment of the cost of the improvement. It is urged that the city should have offered the ordinances in evidence. The affidavit of defense did not deny that such ordinances imposed the cost on the abutting owners. The Act of 1901 does not require the lien to set out at length the acts and ordinances under which the work was done. If the lien refers to such authority by recital of title, and that is sufficiently descriptive to enable the defendant to know what laws and ordinances are claimed as authority, it will be a compliance with Section 11 of the Act of 1901. If the authority does not exist, it must be set up in the affidavit of defense or questioned in other appropriate remedies. No challenge is made as to such authority by the affidavit, and under the twentieth section of the Act of 1901, the lien is conclusive evidence of the allegations therein contained. We have discussed, in City of York v. Eyster, 68 Pa. Superior Ct. 104, other questions raised in this appeal. We need not repeat what was there said. The assignments of error are overruled and the judgment is affirmed.