Philadelphia ex rel. Mack v. Eddleman

Citations

• 169 Pa. 452
• 32 A. 639
• 1895 Pa. LEXIS 1113

Syllabus

<p>Poacl law — Streets—Pavement—Original paving.</p> <p>No particular material is necessary to constitute a pavement. It may be made of anything which will produce a hard, firm, smooth surface for travel.</p> <p>A first pavement which, in the legal sense, exempts the abutting property owner from liability for any subsequent improvement may be defined generally as one that is put down originally, or adopted or acquiesced in subsequently by the municipal authority for the purpose, and with tire intent of changing an ordinary road into a street. If the purpose and intent be wanting, a mere surfacing of the road, however carefully or expensively done, will not be a paving; but if the intent and purpose are present, or can be fairly inferred, then there is paving, whatever the material may be.</p> <p>It seems that, prima facie, macadamizing is not street paving in large cities, while on the other hand there may be a presumption the other way in smaller cities or towns.</p> <p>Mere maintenance as a highway, and repairs and repavings for the purpose of such maintenance, are not sufficient to indicate municipal recognition of the highway as a street.</p> <p>An affidavit of defense to a municipal claim for paving is insufficient to prevent judgment, which merely avers that the road was macadamized by a turnpike company in 1811, so maintained until it was acquired by the city in 1873, and that since 1873 the city “has maintained the said road or turnpike as a public highway, and has repeatedly repaired and repaved the same with macadam.”</p>