Oakdale Bor. v. Allegheny Co. , 91 Pa. Super. 100 ( 1927 )

Argued April 29, 1927. Appellant, the Borough of Oakdale, brought its action in the court below against the County of Allegheny, in which it is located, to recover $2,450 theretofore paid by the borough to two property owners therein as damages occasioned by a change in the grade of a portion of one of the borough streets. The trial judge directed a verdict in favor of the county and subsequently denied the borough's motion for judgment n.o.v. From the judgment entered on the directed verdict we have this appeal. The only question involved under the assignments is whether the trial judge erred in his construction of certain borough ordinances hereinafter referred to. The facts are undisputed and show the following situation: The Boroough of Oakdale is traversed by the north branch of Robinson Run and for a number of years a bridge forming a part of State Avenue had been in existence. In 1918 this bridge was condemned by a resolution of the Commissioners of Allegheny County and appropriate proceedings were had in the Court of Quarter Sessions of that county for the construction of a new bridge upon the old site but at a higher elevation and of greater width. The borough street being continuous to the main structure of the bridge, the county by its action became responsible not only for the building of the bridge itself but also for the construction of proper approaches thereto: Cooper and Grove v. Lampeter Twp., 8 Watts 125; Penn Township v. Perry County, 78 Pa. 457. In the absence of any action by the borough assuming liability, the county would be liable in trespass for any damages occasioned property abutting upon the approaches through the raising of the approach to meet the greater elevation of the bridge: County of Chester v. Brower,117 Pa. 647, and Lafean v. York County, App., 20 Pa. Super. 573. It is conceded, as we understand it, that the county did not have at that time the right to have benefits assessed for any county improvement. The situation therefore seems to have been that the county might have constructed the bridge in accordance with its plans and built the approaches without any action or consent upon the part of the borough, except, perhaps, the mere granting by the borough of its consent to the entry by the county upon the street for the purpose of making the necessary changes in its grade — a question, however, which is not here involved and need not be considered. It is quite apparent that the borough would be benefited by the construction of a better bridge and was willing to cooperate with the county. On July 1, 1918, it enacted Ordinance No. 151, changing and re-establishing the grade of a portion of State Avenue, beginning at the intersection of Clinton Avenue and continuing eastwardly a distance of two hundred and eighty-nine feet, thereby opening the way for the raising of the grade of the approach in question. Then under date of May 5, 1919, it enacted Ordinance No. 153, the proper construction of which is involved on this appeal. As declared in its title, it is an ordinance authorizing the county commissioners, in conjunction with the raising and construction of the bridge, to raise the grade and repave a portion of the street with paving brick at the cost and expense of the county. In its preamble the condemnation of the old bridge is recited and the enactment of Ordinance 151 is referred to and it is then stated that the county commissioners "have agreed ...... to raise the grade of a portion of State Avenue, in accordance with the grade ...... as changed and re-established by said Ordinance No. 151 [and] to repave the same with paving brick, at the cost and expense of Allegheny County." Section 1 authorizes the commissioners to raise the grade and repave "at the cost and expense" of the county. This litigation had its origin under section 2 of the ordinance which reads as follows: "That any benefits chargeable against or damages accruing to abutting properties occasioned by the changing of the grade of a portion of said State Avenue as herein provided shall be assessed as provided by Chapter 6, Article 2 of the Act of Assembly of May 14th, 1915." The Act of Assembly therein referred to is the Borough Code. After the completion of the work proceedings were instituted under Chap. VI, Art. II, of the Act of May 14, 1915, P.L. 312, by Eliza J. Kennedy and the Odd Fellows' Hall Association, the owners of property affected by the change in the grade of the approach. Viewers were appointed and made awards against the Borough of $1,700 damages to the first named property owner and $1,300 to the other. No benefits were assessed. Upon exceptions to the report the Court of Common Pleas held that the ordinance is "clearly notice to the abutting property holders that the Borough assumes the obligations, so far as the abutting property is concerned, of damages which may follow from the change of grade, and assumes to collect benefits, if any, because of the said change in the grade," and that under its provisions the borough was liable to the property owners no matter what the situation might be as to the ultimate liability of the county to the borough. The county had notice of the hearings before the viewers and its solicitor assisted in contesting the claims for damages, but it is not suggested that the county was a party to the proceedings under the Code.

An appeal was taken from the award to the Odd Fellows' Hall Association and a settlement effected, with notice to the county, by the payment of $750 as damages. Having paid these amounts, aggregating $2,450, the borough is now endeavoring to recover from the county upon the theory that they are a part of "the cost and expense" which the county agreed to pay. Unfortunately we have no evidence, oral or written, other than the ordinances themselves, relative to the understanding between the parties at the time the preparations for building the bridge were made. Considering the situation of the parties at the time Ordinance No. 153 was enacted and their respective powers and obligations — particularly the fact that the borough could, and the county could not, assess benefits — it seems to us that the fair and reasonable inference is that there must have been an understanding with relation to a division of the contemplated expenditures. These naturally divide themselves into two classes — the definite and inevitable items involved in doing the physical work which the county unquestionably agreed to pay and the uncertain and problematical items for property damages. As to the latter it seems a reasonable inference that they were assumed by the borough as it could take its chance upon the possibility of the benefits being equal to the damages. Hence the provision in the first section that the raising and repaving of the approach should be done "at the cost and expense" of the county and the provision in the second section that "any benefits chargeable against or damages accruing to abutting properties" should be assessed as provided in the Borough Code. If the first section stood alone it might be fairly urged that the word "expense" therein should be construed to include property damages, but it does not stand alone. Provision is made for the assessment of property damages by proceedings in which the county would not be a party to the issue between the property owners and the borough. If there was no understanding or agreement and the county was to build the necessary approaches in compliance with its legal obligation to build approaches as well as the bridge itself, neither ordinance would have been necessary and the county would have been liable, as we have seen, for any damages occasioned to properties abutting on the approach; but if the arrangement was that the borough, in order to assist in obtaining a better bridge and at the same time retain jurisdiction over the street, agreed to change and re-establish the grade in the only way it could do it (by an ordinance) and to authorize the county to make the physical change at the county's expense, but to take the chance of the benefits equaling the property damages, the reason for the enactment of both ordinances is readily apparent. A majority of the members of this court are of opinion that the binding instructions given for the defendant were proper.

The assignments of error are overruled and the judgment is affirmed.