Maxler v. Freeport Borough

Citations

• 48 Pa. Super. 146
• 1911 Pa. Super. LEXIS 351

Syllabus

<p>Road law — Change of grade — Damages—Act of May 24, 1878, P. L. 129 — Jurisdiction—Act of May 16, 1891, P. L. 76.</p> <p>1. Where a petition under the Act of May 24, 1878, P. L. 129, for the appointment of viewers to assess damages for injuries resulting from the change of the grade of a street, asserts that the change of grade was made without the consent of the petitioners, and without making any compensation to them for the damages sustained or likely to be sustained, and that they and the borough authorities were unable to agree upon the amount of injury or damages sustained by them, the averments of the petition are sufficient to give the court jurisdiction, although no copy of the proceedings on the part of the borough were attached to the petition, and there was no .allegation of any legal action upon the part of the borough. Even if in good practice the ordinance should have been set forth, or that the change of grade was made in pursuance of it, the omission to do so was a mere irregularity which the borough could not take advantage of after an issue had been framed on its own appeal.</p> <p>2. Where a, borough on the petition of property owners has graded, curbed and paved a street, and apportioned the expense thereof upon the abutting owners according to frontage, the owners may thereafter proceed under the Act of May 24, 1878, P. L. 129, to have viewers appointed to assess their damages for injuries caused by the change of grade. The fact that the grading, paving and curbing was done at the same time does not require an owner to proceed for an assessment of damages by three viewers under sec. 8 of the Act of May 16, 1891, P. L. 75.</p> <p>3. The Act of May 24, 1878, P. L. 129, was not repealed by the Act of May 16, 1891, P. L. 75. The two acts may stand together, and both be executed in their appropriate places. If a citizen desires to proceed on his own account, he may proceed under the act of 1878, whereas if he wishes to embrace in his proceeding a