Philadelphia v. Meighan , 27 Pa. Super. 160 ( 1905 )

Opinion by

Smith, J.,

A city ordinance approved May 12, 1866, “regulating the assessment upon property for the construction of sewers,” provided (sec. 2) that upon the completion of any sewer the expense of its construction should be assessed “against the several owners of ground fronting on the street in which said sewer may lie, in proportion to their respective fronts ; ” and section 3 made it a condition of contracts for the construction of such sewers “that the contractor shall accept assessment bills prepared under section 2 ” as so much cash paid on the contract. An ordinance approved November 9, 1892, authorized the construction of sewers on various streets, and made it a condition “ that the contractor shall accept the sums assessed upon and charged to the properties lying on the lines of said sewers, in manner and form authorized by ” the ordinance of May 12,1866.

Among the sewers constructed under the ordinance of 1892 was one on Kensington Avenue. Instead, however, of assessing its cost against the abutting owners on both sides of the avenue, it was assessed only against those on the southwest side, and no part of it was paid by those on the opposite side. The reason for this, apparently, was that there were double passenger railway trades along the middle of the avenue; and the sewer was laid on the southwest side of these.

An ordinance approved April 2, 1898, authorized the construction of a sewer on “ Kensington Avenue (northwest side, northwest side only to be assessed).” The question presented here is whether an assessment against an owner on the northwest side of the avenue, for a portion of the cost of this sewer, can be sustained.

The principles that govern the determination of this question are settled by the decisions of the Supreme Court in a number of cases, among which are Hammett v. Philadelphia, 65 Pa. 146, Erie v. Russell, 148 Pa. 384, Harrisburg v. Segelbaum, 151 Pa. 172 and Williamsport’s Appeal, 187 Pa. 565. The conclusion, of the learned trial judge is sustained by the authorities cited' in his opinion, and is amply vindicated by his application of the principles which they have established.

When a work of local public utility, — a highway, a water main, a sewer, etc., — has once been constructed, either by the public or at the expense of abutting owners, the latter cannot be charged with the cost of any subsequent reconstruction or change, even' if this is a further benefit. Under the ordinances of 1866 and 1892, the original construction was for the benefit, locally, of “ the several owners of ground fronting on the street,” on both sides, and its expense was to be met by assessments .-against them. Their liability cannot be extended beyond the -construction thus authorized and carried out. The construction of 1898 was but an enlargement of sewer capacity or facilities ; an improvement the same in kind, and differing only in degree of convenience. The original construction gave the abutting owners, on both sides of the avenue, all the benefits and made them liable for all the assessments provided for by the . ordinances'of 1866 and 1892. “ Assessments for special local ' benefits, if exercised at all, must be exercised at or near the time the benefits accrue:” Harrisburg v. Segelbaum, 151 Pa. 172. The failure of the city authorities to assess a proportionate •part of the cost of the original construction against owners of property on the northwest side of the avenue created no liability .'on the part of the latter for a supplemental construction of the same character and designed for the same purpose, and which, ■ in effect, was part of the sewerage of the avenue provided for • by the earlier ordinances.

Judgment affirmed.