Philadelphia v. Scholl

Opinion by Kepiiart, J., This appeal is from the entry of judgment for want of a sufficient affidavit of defense on a scire facias sur municipal 1 ien. The defense interposed was that the city, through its various ordinances, had agreed with the subsidiary companies forming a part of the Philadelphia Bapid Transit System to accept the obligation of these companies to pave the street in front of the appellant’s,property, which agreement under the law released the property owner from paying for this paving. See Philadelphia [413] v. Philadelphia, Trustee, 244 Pa. 224. We are satisfied that the court below properly disposed of this question as will be seen by Judge Audenreid’s opinion filed in the i*eport of this case. The ordinance of 1894 was not a general ordinance applying to all street car companies in the City of Philadelphia. It only applied to the companies which had been required to pave the street upon which its tracks would be laid simultaneously with their construction. In this sense it was a special ordinance. When the ordinance granting permission to the Fairmount Park and Haddington Passenger Railway Company to lay tracks on Sixty-third street, conditioned that the company should be subject to the ordinance of December 1, 1892, wherein it ivas “to accept as binding upon it the terms and conditions of all laws and ordinances now in force, or which may hereafter be passed, relative to the government, control or regulation of railways or railroads of any kind within the City of Philadelphia,” it related to all general laws applicable to all railways within the city. Council did not intend to attach to this company’s permission to use Sixty-third street the special conditions that were coupled to the authority of one or more of the many companies to operate within the city. The affidavit avers that the street in front of the appellant’s property was paved with Telford having brick gutters and cement curbstones, which paving extended the width of the street, except between the street car tracks, where it had been paved with Belgian blocks; and that said paving had been paid for by the property owners at the time it was laid. Since the case of Hammett v. Philadelphia, 65 Pa. 146, and the long line of cases following it, an abutting property owner is not liable to pay the cost of repaving a street. He is only liable for an original paving: Harrisburg v. Segelbaum, 151 Pa. 172. Repairing a street is part of the ordinary duties of a municipality. It cannot be met by local [414] assessments. There is no special benefit conferred on an abutting property in the repair of a street. The difficulty with the appellant’s affidavit is that it does not state when this supposed paving was laid, the name of any property owner who paid for it, or the municipal authority under and through which this paving was laid (Philadelphia to use v. Baker, 140 Pa. 11), or the acts by which the city subsequently ratified and adopted it as an original paving,, as will be noticed later. The statement as contained in the affidavit is too general. As to the acts showing that this street had been previously paved and had been adopted as a permanently improved street, we discussed in Easton City v. Hughes, 66 Pa. Superior Ct. 589, what would constitute a first pavement and the elements necessary to evidence this fact; namely, the character of the construction and the intention of the municipality. The affidavit avers that the original paving was Telford, that the city recognized it as being an original paving, that it charged plumbers $6 for permits to dig up this street for connecting service pipes, or other street improvements, while on dirt streets a charge of «f 1 was made, and that the city kept this street in repair. All of these averments, if true, would not be sufficient to convert the street as then constructed into a permanently improved street. “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”: York City v. Holtzapple, 67 Pa. Superior Ct. 596. The affidavit should set forth the materials entering into and the manner of constructing the Telford. This word has a technical meaning, but as commonly used, it is made to cover construction that would not be considered of a permanent nature. It is, therefore, important to show in some detail how it was built. Assuming that it might be adopted by Philadelphia as an original paving, the averment that the city recognized it as such is a conclusion. The affidavit must state the acts bv which the [415] city evidenced its intention to adopt the paving as an original one. That the charge for permits to dig in this street differed from that made in other streets, that other improvements were in the street before the paving was laid, that property was assessed at full city rates, and that the surface remained undisturbed for a period of twelve years, while some evidence, would not be sufficient to establish the municipal intention necessary in law to show either ratification or adoption. The judgment of the court below is affirmed.