Forbes Street , 70 Pa. 125 ( 1872 )

The opinion of the court was delivered, May 13th 1872, by

Read, J.

By an Act passed the 16th June 1836 (Pamph. L. 750), a tract of land adjoining to and bounded in part by the eastern bounds of the city of Pittsburg, was directed to be set off, defined by limits and surveyed, in the manner and for the purposes therein specified, as a city district, for the said city commissioners appointed under said act, were to make a subdivision of the same into sections, and to make and lay out a general plan of the said district, to survey, locate and mark therein, such streets, alleys and squares as they shall think proper, and shall cause to be made a correct map or plan of the same, and return it to the Court of Quarter Sessions of Allegheny county, and when established, the streets, lanes and alleys so approved, shall for ever thereafter be deemed, adjudged and taken as public highways.

By an act passed the 1st of March 1837, the borough of the Northern Liberties of Pittsburg, was added to and incorporated with the city of Pittsburg, and the boundary lines of the city district of the city of Pittsburg were extended, and the provisions of the preceding act were extended to and made part of the act, and commissioners were required to be appointed, with all the powers conferred upon the commissioners designated in the Act of 1836. Commissioners appointed under these acts performed all the duties imposed upon them by their provisions, and made a report to the Court of Quarter Sessions, consisting of a map or plan of said city district, which was duly filed and presented to the court, who, after hearing the parties, adjudged said act to be unconstitutional, and refused to adjudge and determine that the said plan should be established, and refused to order the same to be recorded. The record of this proceeding was removed by certiorari to the Supreme Court, who decided the acts to be constitutional, and reversed the decision of the court below, and ordered the record remanded to the court below, in order that it may proceed in the matter as required by the Act of Assembly, and the record was remitted for further proceedings. The plan was finally approved and confirmed by the Court of Quarter Sessions, with certain alterations and modifications, on the 19th October 1843. The case, under the title of “ In the matter of the district of the City of Pittsburg” is reported in 2 Watts & Serg. 320, and the very able opinion of Judge Kennedy gives a full statement of the provisions of the Act of Assembly and the proceedings under it.

By an Act of the 1st March 1845 (Pamph. L. 88), provision is made for an election by the freeholders and tax-payers of sections applying to be admitted into the city on the question of admission, and if the majority of votes shall be for admission, the select and common councils of the city of Pittsburg are authorized to admit the same as an additional ward of said city. Under this provision, by an ordinance of the 10th December 1846. sections 39, 40 and 41 were admitted as a ward of said city, designated as the Eighth Ward, and section No. 25 was also admitted as a part of the Seventh Ward of said city.

By a supplement to the Act of the 16th June 1836, passed 15th March 1847 (Pamph. L. 376), the viewers appointed under said act, in the opening of any street in the plan of the city district aforesaid, are to take into consideration the advantages that may accrue to any person petitioning for damages, and to ascertain as far as possible the names of all owners who may receive any benefit or increase of value to their property adjacent to said street, and apportion the amount thereof upon each of the said owners fairly and equitably, and in case the said viewers shall in any instance believe that the amount of said damages cannot equitably be assessed upon the adjacent property and so certify, then they may direct that an amount not exceeding one-fourth of the whole sum shall be paid from the treasury of Allegheny county, the whole proceedings to be subject to the approval of the court, as in other eases of road damages-. Provision is made for the damages so apportioned, remaining a lien upon each lot to the extent of the assessment, and charge thereon, and if not paid within one year after confirmation by the court, the lot may be levied upon and sold, and the moneys so assessed and paid into the city treasury shall be paid over to persons entitled thereto.

By the fourth section of an act passed 5th April 1849 (Pamph. L. 342), it was enacted that where the viewers have certified, or may certify, and report to the court, that they cannot find property benefited by the opening of any such street, and cannot equitably assess the damages, or three-fourths of the same, as provided by the Act of 15th March 1847, the court is empowered to vacate the street or any part of it, and the viewers shall take into account and assess all property that may be benefited whether adjoining such street or not.

By an act to authorize the re-location of certain streets in the city district of Pittsburg, passed 30th March 1855 (Pamph. L. 152), three commissioners were appointed to relocate the streets in the city district of Pittsburg, lying south-east of Bates street, and north and east of Frazer and Halket streets, so that they may conform to the shape of the ground, and answer public convenience with due regard to private property ; said commissioners to return a map or plan of the location made by them to the Court of Quarter Sessions of Allegheny county, which shall be deemed and taken to be a part of the original plan of said district, unless after the notice prescribed by the act authorizing said plan, it be excepted to by parties interested in the land occupied by said streets, and if any exceptions be filed, the said plan may be altered or approved by said court, with the right to any' party to remove the proceedings to the Supreme Court of the proper district, whose action thereon shall be final.

An act concerning streets and sewers in the city of Pittsburg was passed the 6th January 1864 (Pamph. L. 1131), under which the present proceedings in relation to Forbes street have been conducted.

By two supplements to the acts incorporating the city of Pittsburg, passed the 6th April 1867 (Pamph. L. 846), and the 1st April 1868 (Pamph. L. 565), the city was enlarged by the annexation of the borough of Lawrenceville, and the townships of Pitt, Oakland, Collins, Liberty and Peebles, which were consolidated with the same and together formed the city of Pitts-burg, and all laws and ordinances relating to the city of Pitts-burg which were in force at the time of the passage of the aforesaid Act of April 6th 1867, and which have not been subsequently repealed or supplied, were declared to be and remain in full force, and applicable to said city as consolidated by said act.

On the 25th May 1868, the city councils passed an ordinance that Forbes street, from Boyd street to Seneca street, be opened in accordance with the-city district plan, and appointed viewers in accordance with the Act of Assembly, (approved January 6th 1864, to award damages and assess benefits arising therefrom. The viewers, proceeding in the manner prescribed by the act, made their report to councils, which was finally acted upon and approved by them, and within the time fixed by the act several persons interested presented petitions to the Court of Quarter Sessions of Allegheny county, setting forth the facts in their cases, and that they verily believe that injustice has been done them by the report of said viewers, and the clerks of councils certified to the said court all the papers and proceedings in the case. The act then says: “ and thereupon the said court shall take such action in the premises as they may think right and proper, and shall have power to hear evidence to modify, correct and approve said report, or quash the whole proceedings, or to appoint new viewers with the like power to modify, correct and approve the report or quash their proceedings.”

The power thus given is specific. It is to hear evidence for the purpose of acting on the report, or to appoint new viewers — which the court did not do. In hearing the evidence the court had the power to appoint an examiner to take the testimony, but no authority to appoint a master, whose report and opinions occupy thirty-two printed pages, and formed the entire ground-work of the decree of the court. The master exercised his own judgment in fixing the amount of damages done to property, and in the assessments upon properties benefited by the improvement — a grant of authority to a single individual never contemplated by the legislature. The proceedings must, therefore, be reversed; but as there is an evident misapprehension in the mind of the court, as well as that of the master, as to the Act of June 16th 1836, it will be proper to consider its provisions as applicable to the case before us.

We must express great surprise at the statement by the court in their opinion, p. 41, “ after a careful examination of the report and accompanying testimony, aided by the research and arguments of counsel, we have reached the same conclusion as did the commissioner. In doing so, however, we do not find it necessary to decide the act providing for the location and survey of the ‘ city district’ is unconstitutional.” A singular expression to be used in relation to an act which this court, in 2 W. & S. 320, thirty years before, decided to be constitutional.

This act in directing the laying out of the city district made two classes of streets: 1. Such streets as the commissioners thought proper to survey, locate and make in the general plan of the said city district. 2. Such streets which, previous to the making of the said plan, had been laid out and appropriated by private persons, or otherwise, for public use, or for the use of the owners of lots fronting thereon, which are directed to be adopted, inserted in and made part of the said general plan.

Provision is made for the owner of any ground through which any street of the first class may be opened, obtaining indemnification for any injury he may sustain thereby; but there is no provision made for damages occasioned by the opening of streets of the second class.

The leading object of laying out the city district, which was intended finally to become a part of the city of Pittsburg, was that the owners of ground within it should know what portion of their property would be taken for streets and other public purposes. The portions laid out for streets were to be deemed taken and adjudged as public highways. If buildings were erected on ground to be taken for streets of the first class, previously to the plan and survey, then they were to be paid for as well as the ground taken when the streets were opened; but if built after the survey and plan, of which map or plan all the freeholders owning property in the said district had notice under the provisions of the 6th section of the Act of June 16th 1836, then it is clear such buildings were not to be paid for, for otherwise the map or plan would be entirely nugatory. The case of Freeman Street, 17 Wendell 649, cited by Judge Kennedy, 2 W. & S. 325, is good authority upon this point.

The map or plan was approved and confirmed, with certain alterations and modifications, on the 19th October 1843, and, as we have seen, certain sections of it were admitted into the city of Pittsburg as the Eighth Ward, and part of the Seventh Ward. This map or plan has been distinctly recognised by various Acts of Assembly, and forms the basis of very valuable improvements in the city of Pittsburg, and it is too late in the day to take technical objections founded upon the looseness of the docket entries of the court.

When, therefore, an individual erects a pottery, or any other building or improvement, on Forbes street, and the street is ordered to be opened, he cannot claim damages for its removal, nor for any injury caused to the remaining works by such necessary removal or destruction. His damages will be limited to the value of the ground taken for the street, and this is strictly equitable, as it diminishes the amount of benefits to be assessed upon other owners of property.

So the question of dedication in all the authorities in this state really applies only to streets of the second class, and has no application to streets of the first class, which in one of the cases creates the absurdity of dedicating by inference a house, as well as the ground on which it stands, to the public.

In their action upon the opening of Forbes street, the court below must consider as established,

1st. That the Act of 16th June 1836 is constitutional.

2d. That the map or plan filed in the office of the clerk of the Court of Quarter Sessions was fully established according to law.

Decree reversed, and record remitted for further proceeding, according to law.

Agnew, J.

Without dissenting generally, I cannot concur in that part of the opinion which denies the power to appoint a commissioner to 'aid the court by examination and report. I consider this appointment as merely ancillary and made under the general powers of the court, and his report is merely advisory, and not binding like that of a statutory viewer till set aside in due course of procedure.