Harrisburg v. Funk , 200 Pa. 348 ( 1901 )

Opinion by

Me. Justice Pottee,

The constitutional question involved in this case is identical with that in City of Harrisburg v. McPherran, in which an opinion has just been filed. An additional question here is, whether, under the undisputed testimony in this case, the trial court was justified in holding the evidence insufficient to submit to the jury as to any municipal recognition of a change from an ordinary road to a city street. This latter term must be understood in a legal sense, for, as a matter of fact, the highway in question was within the city limits, but the trial court held that it was not a city street in a sense that would preclude the city, at the time stated, from paving it with asphalt and imposing the cost upon abutting property owners. There is no hard and fast rule on the subject of the kind of paving. It is a question of fact in each case, but the governing consideration is the nature of the municipal action with regard to it: Philadelphia v. Eddleman, 169 Pa. 452. Mere maintenance as a highway, and repairs and repavings for the purpose of such maintenance, are not sufficient: Philadelphia v. Dibeler, 147 Pa. 261. Even the laying of gas pipes along a highway, and the grading, curbing, and paving of sidewalks is not, in itself, sufficient evidence of municipal adoption to prevent a subsequent paving at the expense of the abutting property: Dick v. Philadelphia, 197 Pa. 467.

The controlling question is one of municipal intent. Where it is contended that an improvement to a street had converted that highway from a road into a street, it must be shown that the improvement was either authorized or adopted by the municipal authorities.

There is no evidence of any ordinance of the city of Harrisburg authorizing or adopting any formal improvement; neither is any contract in relation thereto shown, and there is, of course, no contention that the municipality ever exercised any statutory authority with respect to the paving of the street, prior to the present time. Undoubtedly there might be an acquiescence short of this, but the entire absence of formal municipal action is strong presumptive evidence of lack of municipal intent to adopt the road as a paved street. Municipal adoption or acquiescence cannot be assumed. It must be proven.

In so far as the evidence is concerned, the municipal authorities apparently did nothing more than keep the street in ordinary repair. This was a duty incumbent upon them under any circumstances, and its discharge is entirely consistent with the absence of purpose or intent to change an ordinary road into a city street.

We cannot see in the testimony anything which should properly exempt the abutting property owner from liability for his proportionate share of this improvement. Where, as here, the facts are undisputed, the question as to whether or not an original paving is shown, prior to that for which it is sought to recover, becomes a question of law for the court.

We see no error in the conclusion that this was not a repaving. The assignments of error are all overruled, and the judgment is affirmed.