In re Change of Grade Borough of Dorranceton

Opinion by Porter, J., The appellant presented his petition to the court below, under the provisions of the Act of May 24, 1878, P. L. 129, as amended by the Act of April 27, 1911, P. L. 89, alleging that the authorities of the Borough of Dorranceton had changed the grade of West Park Place in front of his property, and praying for the appointment of viewers in accordance with the provisions of the statute. The viewers reported that the property of the petitioner had been damaged, from which report the borough appealed. Upon the trial a verdict was rendered in favor of the plaintiff, but the court entered judgment in favor of the defendant non obstante veredicto. The petitioner appeals from that judgment. The appellant testified that he had, in 1912, received a notice to lay a sidewalk in front of his property, that he had employed a contractor to lay the sidewalk and he produced other testimony which would have warranted a finding that the contractor laid the sidewalk at a grade given him by the borough engineer, and that the sidewalk thus laid was about nine inches higher than the cinder sidewalk which had formerly occupied the space. This was the only change which had been made in the [119] grade of any part of the street. The work was done by the contractor employed by the appellant and there was no evidence that the proper borough authorities had acquiesced in or approved it. The borough council had never even established a paper grade for the street, much less authorized a physical change of grade. The only ground upon which it is sought to charge the borough is that the borough engineer had given to the appellant’s contractor a grade at which the sidewalk should be laid. The engineer of a borough has no authority to establish a grade of a street or to' authorize a physical change of grade, that is a power vested exclusively in the council. When a party seeks to recover of a borough damages alleged to have resulted from the change of the grade of a street, the burden is upon him to show that the change was made by the proper authorities' of the borough, either by municipal action in the first instance or by acquiescence and subsequent adoption: Kittanning Borough v. Thompson, 211 Pa. 169; Hicks v. Williamsport, 235 Pa. 509; Jenkins v. Minersville Borough, 44 Pa. Superior Ct. 423. The learned judge of the court below did not err in entering judgment in favor of the defendant notwithstanding the verdict. The judgment is affirmed.