Streets & Alleys in Parkesburg Borough , 124 Pa. 511 ( 1889 )

Opinión,

Me. Justice Clark:

The borough of Parkesburg was incorporated by a special act of assembly approved March 1, 1872, P. L. 195, subject to the provisions of the general borough law of April B, 1851.

By the second section of the general borough law the corporate authorities had power to survey, lay out, enact, and ordain such roads, streets, lanes, courts, and common sewers as they may deem necessary, and to provide for, enact, and, ordain the widening and straightening of the same; to this extent the act of 1851 supersedes the general road law of 1836; the power to lay out and ordain streets, alleys, etc., beginning and ending within the corporate limits, is exclusively in the borough authorities: Somerset and Stoystown Road, 74 Pa. 61; South Chester Road, 80 Pa. 370.

But the corporation has no authority under that act to open such streets without the owner’s consent, or until just compensation shall be made to the owners of the property through which they pass. The third clause of the 27th section of the same act, therefore, provided that “like proceedings shall be had for the opening, widening, and straightening of the roads, streets, etc., laid out and ordained, in accordance with the provisions of this act, as are provided by law for the laying out and opening of public roads, within this commonwealth; ” that is to say, the streets, or the widening or straightening thereof, having been surveyed, enacted, and ordained, by the burgess and council, must be opened, widened, and straightened, upon an assessment of damages, under proceedings, by view and review, in the Court of Quarter Sessions of the proper county. If the owner of private property, on the lino of the street, either for a consideration agreed upon, or without compensation, consent that the street may be opened as laid out and ordained, the corporate authorities may at once proceed to open, and thereupon the street shall become a lawful public highway; otherwise, however, the corporation is obliged to resort to the courts for an assessment of damages according to law.

The question we are now called upon to decide is, by whom shall the damages thus assessed be paid. The contention of the plaintiffs in error is, that the damages are assessed against, and must be paid by the corporation ; whilst the defendants in error maintain that the value of the land taken must be paid by the county, and tlie damages assessed beyond the value of the land by the corporation, and that in all cases the jury must separately assess the same.

The 27th section of the act of April 3, 1851, provides, as follows : “ The powers and duties of the corporation shall bé subject to the following provisions : (1) Private property shall not be taken for the uses and purposes of the corporation without consent of the owner, or until just compensation shall be made therefor, according to the laws of this commonwealth.” Private property shall not be “ taken,” — taken by whom ? By the corporation. It is the corporation, in such case that proposes to take the property, and it is to the corporation, therefore, as we understand it, that this restriction and requirement of the statutes apply. The duty to pay attaches, of course, to the party proposing to take the property. “ The powers and duties of the corporation” are expressly “subject” to this provision of the statute; that is to say, the borough may not exercise the power without performing the duty enjoined. The 27th section further provides, “ that such streets, lanes, and alleys, footwalks and pavements shall not be opened for public use until the damages shall be liquidated, and upon any amounts due, or to become due, by borough corporations for the purposes aforesaid, interest shall be allowed and paid from the date of the adjudication of said damages.”

Moreover, as the streets are laid out by the corporation wholly within the limits of the corporation, “ for the uses and purposes of the corporation,” the inference would seem to be irresistible, that the corporation should make the compensation. It seems incredible that the legislature should have intended that the county should be held to compensate private owners for land taken in a proceeding over which it has no control, in which it has no part, and of which it has no notice.

But if there was ever any doubt as to the liability of municipal corporations in such cases, the 8th section of the 16th article of the constitution must certainly settle the question. This section provides : “ Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured, or destroyed by the construction or enlargement of their works, highways, or improvements, which compensation shall be paid or secured before such taking, injury, or destruction.” If this does not impose payment of the damages for property taken, in the construction of highways, upon the municipality taking it, it would be difficult to suggest language which would be adequate for that purpose. In the case of a public road, laid out under an order of the Quarter Sessions, the county is responsible for the damages under the act of 1836, and there no such restriction exists; the road may be opened without prepayment of the damages; indeed, the assessment thereof cannot be made until the road is opened, and then proceedings may be instituted at any time within one year.

Whilst the exclusive power of the authorities of a borough to enact and ordain streets, alleys, etc., under the act of 1851, is undoubted, by streets, alleys, etc., “ therein,” is meant such only as begin and end within the limits of the municipality. This exclusive provision does not extend to public roads, laid out through or to a point within the limits of a borough, of which only a part is within the borough lines. The Court of Quarter Sessions has undoubted authority in such cases under the general road law of 1836 : Somerset and Stoystown Road, supra. In such cases, however, it is provided by the 27th section of the act of 1851, as follows : “ That every jury appointed to view, review, lay out, widen, straighten, or to vacate any road, or part of a road, in any borough in this commonwealth, shall have due reference to the town plot, herein authorized and directed, and to the general arrangement, plan, convenience, and advantage of the borough, and shall set forth-the facts fully in their report.”- Thus it is apparent that whilst, under the act of 1851, the corporate authorities have exclusive power to lay out, enact, and ordain streets, etc., within the corporate limits, the county, or the state rather, through the instrumentality of the Quarter Sessions, may still proceed, under the act of 1886, to lay out and open roads through or into any part of any borough for public use. In either case, however, the damages are assessed by a jury of the Quarter Sessions, and the roads or streets, as the case may be, when duly opened, are public highways “ over which the corporation shall exercise jurisdiction ” under the provisions of the act of 1851.

But by the fifth clause of the 27th section of the act of 1851, it is further provided, “ that it shall not be lawful for any owner, or owners, etc., to erect any buildings or make any improvements within the lines of the roads, streets, etc., laid out, etc., or ordained to be laid out, after due notice thereof; and if any such improvement be made, no allowance shall be made therefor in the assessment of damages, but the loss or injury sustained by the laying out of the same shall be determined by agreement of the parties,” or by a jury of the Quarter Sessions, as directed by the act. The proviso applies generally to all roads, streets, etc., within the borough, whether laid out under the act of 1836, in the manner already stated, or under the act of 1851. The damages for laying out public roads are in general imposed on the county, and when laid out partly within a borough the same rule obtains; in such case the land of private owners is not taken by the municipality but by the state, and in the absence of any provision to that effect, there would be no liability on part of the municipality. But as the viewers in such cases are bound to have reference to the town plot and to the general arrangement, plan, convenience, and advantage of the borough, as to route, grade, etc., it was considered proper that the municipality should bear a just proportion of the damages ; hence, it is a general provision of the act of 1851 that all damages assessed beyond the value of the land thus appropriated to public use shall be paid by the corporation, and that the jury shall separately assess the same; and as the officers of the municipality have peculiar opportunities for knowing that erections or improvements are about to be made, they are thus charged with the duty of giving notice of the laying out of the road or street. This may probably explain the connection in which this provision is found in the body of the act.

By the act of April 22, 1856, P. L. 525, however, further provision was made as follows : “ Whenever the burgesses and. town council of any borough shall open, or he about to open, any streets or alleys therein, or to widen or extend the same, it shall be lawful for said burgesses, etc., to apply by petition to the Court of Quarter Sessions of the peace of the proper comity, setting forth the facts, and describing the locality of such streets or alleys, and praying said court to appoint seven disinterested freeholders of such borough, who, after being first duly sworn, etc., shall proceed to view the premises described in said petition, having regard to both the advantages and disadvantages caused to the several properties along the line of and adjoining said streets and alleys, and shall assess and allow to all persons injured thereby such damages as they shall have sustained respectively over and above all advantages ; and shall also mate assessments for contribution upon all such properties as shall be benefited by the opening, etc., of said streets, etc., such sums respectively as they may have been benefited over and above all disadvantages.”

It will be observed that this act of 1856 only applies to the opening of streets by the municipal authorities, in which case, as we have seen, the sole liability for damages is assumed by the borough, and we are of opinion that the provision of the act of 1851, as to the separate assessment of the value of the land taken, has no application in a proceeding under this act. It is plain, that the act of 1856 contemplates an assessment of all the damages against the municipality; the estimate of the advantages and the disadvantages, the assessment of damages to projorties injured, and for contribution upon properties benefited, is practically inconsistent with any other theory. It seems incredible, if any distinction is to be observed between the value of the land taken and other injuries sustained, that there was no provision to that effect in this act. The duties of the viewers are most minutely and particularly stated, and there is not the slightest suggestion to this effect. Cummings v. Williams-port, 84 Pa. 472, was a case under this act, and it was there held, that in estimating the damages sustained by the opening of a street, the proper measure of damages is the difference between what the property would bring in the market before the improvement, and what after the improvement was made, without reference to the purposes for which it may be used. No separate assessment was there made, none suggested, and the measure of damages adopted is wholly inconsistent with that mode of assessment.

As the streets and alleys, laid out and about to be opened in the borough of Parkesburg, were laid out, enacted and ordained by the burgess and council of that borough, and the proceeding to assess the damages is under the act of 1856, we are of opinion _ that the county of Chester cannot be held for any part of the damages.

The proceedings of the Court of Quarter Sessions of Chester county are therefore reversed.