Dunn v. Tarentum Borough

Citations

• 23 Pa. Super. 332
• 1903 Pa. Super. LEXIS 67

Syllabus

<p>Boad law — Petition by property owners — Damages—Estoppel—Act of May 16, 1891.</p> <p>Under the Act of May 16, 1891, P. L. 71, a bprough has the general power to grade, curb and pave a street, or it may ordain that a fund shall be raised by assessment upon the abutting properties of the costs, damages and expenses according to benefits.</p> <p>Where property owners petition a borough to grade, curb and pave a street “ charging the costs, damages and expenses thereof ” to their several properties, and the borough passes an ordinance in accordance with the petition, and the ordinance provides that the costs and expenses (no mention being made of the damages) shall be paid by the property owners, and subsequently the borough procures the appointment of viewers “to ascertain the damages and assess the costs, expenses and benefits arising from said improvements,” the borough cannot claim that all the damages to properties on the street should be charged against the petitioners, or that the petitioners had released their right to damages.</p> <p>In such a case it was optional with the borough either to accept the offer of petitioners, or, disregarding the portion of the petition relating to costs and damages, to provide for the ascertainment, assessment and collection of the costs, damages and benefits in the statutory mode.</p> <p>A lot owner who joins in a request to borough authorities to grade a street is not estopped thereby from claiming compensation for an injury to his property by the grading. The consent which relieves a borough from its constitutional obligation to the owner for an injury to his property, means something more than 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. The burden of proving not only the release or facts from which a release is necessarily to be implied, but also that the damages to which the lot owner