McMarlin v. Butler Borough , 41 Pa. Super. 20 ( 1909 )

Opinion by

Rice, P. J.,

One of the questions of fact which arose in the trial of the case was, whether in making the improvement, to which we shall hereafter refer more in detail, the borough actually widened the street and took part of the plaintiff’s property in doing so. It arose in this way. While the action was trespass, it was agreed by counsel that the question whether any of the plaintiff’s land had been taken should be determined in this action, and if it was determined in the affirmative, then the question whether the plaintiff’s property was injured or benefited should also be determined in the action, in the same manner, and with the same force and effect, as if an ordinance' had been enacted widening the street, viewers had been appointed and an appeal had been taken by either party from their award. There was no official record of the original location and width of the road, and the determination of these matters depended largely upon oral testimony similar in general character to that usually adduced in such a controversy. No good purpose would be subserved by a recital of it. It is enough to say that under the conflicting evidence the question was for the jury, and that it was submitted to them by the learned trial judge in a manner of which the appellant has no just cause to complain. Nor did the mere fact that the plaintiff had been told by someone that the street was fifty feet wide, and that he believed it to be so at the time he signed the petition hereafter referred to, estop him from showing that it was not of that width, much less did it estop him from showing the true line of the street on his side. This is apparent when it is remembered that his belief was based on information that another property owner, evidently on the other side of the street, had given seventeen feet to make it fifty feet wide. This did not affect the line on his side of the street. Moreover, his belief as to the width of the street was immaterial, in the absence of any evidence that he made any representation as to its width to the borough council in order to induce action, as the learned judge properly said in answer to the defendant’s fourth point. The third assignment of error is overruled.

We come next to the principal question in the case, to which all the assignments of error, excepting the third, relate. The plaintiff and others, being two-thirds of the owners of property representing not less than two-thirds in number of feet of the properties fronting or abutting on the portion of the street described, petitioned the borough council “to grade, curb with stone or other suitable material and pave with brick or other suitable material the said part of said street or thoroughfare, between the points above mentioned under the provisions of the act of assembly approved April 23,1889, P. L. 44, and assess the cost and expenses thereof as provided by said act.” The petition contained this waiver: “And we waive any claim for damages done to our several properties, if any, by reason of said improvement.” The ordinance passed pursuant to this petition is not printed in the appellant’s paper-book, but the official record of the trial shows that it was admitted by counsel that the improvement involved in the case was made in pursuance of its provisions.- Leaving out of view the alleged widening of the street of which we have spoken, the improvement consisted of these elements: first, widening the cartway part of the street to thirty feet, lowering the grade of that part of the street about two feet below the previous grade of the cartway, paving it with brick and curbing it; second, cutting down the sidewalk embankment on each side of the cartway, as thus widened and graded, to the level of the curbs. The plaintiff testified that before the latter was done there were five steps leading from the sidewalk to his front door, and two steps from the sidewalk to a side door, whereas, since the lowering of the grade of the sidewalk, from thirteen to fifteen steps will be required. So it is seen, if the plaintiff is to be credited, that the change of the sidewalk grade was considerable. The question is whether the release covered the damages thereby occasioned. Amongst other instructions upon this subject the court said: “It does not appear here that there was ever any grade established for the sidewalk in that vicinity by any borough authority, and in the absence of such official designation of grade the natural grade of the sidewalk, if such there was along there, prior to the time of the improvement, would govern, and if there has been any substantial change of the grade in such way as to do damage to the plaintiff, he would be entitled to recover damages on that account. . . . The question for you is whether or not that sidewalk has been cut down in such way as to do damage or injury to his property. If so, it would be an element of damage to be considered by you.”

One criticism of these instructions urged by counsel is, that they withdrew from the jury the question whether or not a part of the street formerly used as a sidewalk was included in, and cut down in grading, the widened cartway. We agree with counsel that the waiver was a bar to recovery for damages thus occasioned, but we are unable to agree with him as to the effect of the judge’s charge on the subject. The instructions in question must be considered in connection with the preceding instructions, in which the court drew a proper distinction between the grading done in order to the paving of the cartway part of the street and the grading of the sidewalk, and charged properly relative to the applicability of the release to the damages from, the former. The learned judge was now speaking of its applicability to the latter, and evidently did not intend to withdraw or contradict what he had said immediately before. Nor were the instructions so ambiguous as to be misleading; on the contrary, after careful consideration of the criticism of counsel we conclude that it is not well founded. The effect of the instructions taken as a connected whole was to convey to the mind of the jurors the idea that the waiver covered the damages that occurred from the grading of the roadway but not those that occurred from grading the sidewalk. The same idea was conveyed in the answer to the plaintiff’s second point and the answer to the defendant’s first point.

Thus viewing the instructions we are of opinion that they were correct. “The consent which relieves a borough from its constitutional obligation to make just compensation to the owner for an injury to his property, means something more than mere nonresistance. It should be given to the municipality by the party interested, and it should embrace, in express terms or by necessary implication, a release of the right to damages:” Jones v. Bangor Boro., 144 Pa. 638; Dunn v. Tarentum Boro., 23 Pa. Superior Ct. 332. The release of damages interpreted in the light of this just principle is not the same as if the petition had simply prayed that the street be graded, paved and curbed. The petitioners invoked the exercise of the power conferred upon borough authorities by a particular statute, namely, the Act of April 23,1889, P. L. 44, which, as its title indicates, relates only to the paving, curbing and macadamizing of streets. The improvement contemplated in the release of damages was such as the borough could make in the exercise of that power. True, the petition speaks of grading, but it was grading to be done under the provisions of that act, and as is pointed out by our Brother Head in Shady Avenue, 34 Pa. Superior Ct. 327, it is matter of common knowledge that the paving of a street usually involves excavation to bring about uniformity of grade and contour. The terms of the petition would have been satisfied by the grading of the part of the highway the borough elected to pave. It no more called for grading the entire width of the street than for paving the entire width. Again, it was grading, the cost of which could be assessed against the property owners under the act of 1889, that the petition prayed for. If the borough had elected to pave the entire width of the street from property line to property line, perhaps the release would have barred recovery of damages. But the borough did not elect to do this, but left space on either side for foot walks. Whatever the borough did with regard to these parts of the street was not done under the act of 1889 and was not an improvement, the cost of which could be assessed against the property owners. “ Whilst it may he conceded that the term 'street,' in its broadest significance, includes the sidewalk as well as the cartway, it has long been the policy of the law to distinguish between them, and to recognize that as to the former, the rights and responsibilities of the owner of property are quite different from those enjoyed or imposed on him in relation to the latter, or the street as that word is used and understood in the common speech of the people:” Shady Avenue, 34 Pa. Superior Ct. 327. This distinction between sidewalks and cartways is recognized and maintained in many acts cited in the appellee’s brief. In referring to the act of 1889 as the source of the borough’s power, the petitioners recognized this distinction, and plainly indicated their intention to restrict their release to the grading and paving of the roadway, as distinguished from the sidewalk.

We have not discussed every point suggested in the able argument of appellant’s counsel, but we have discussed the main points and have given full.consideration to the entire argument of counsel. We find no error which would justify a reversal of the judgment.

Judgment affirmed.

Porter, J., dissents;