Philadelphia v. Edmonds

Citations

• 59 Pa. Super. 318
• 1915 Pa. Super. LEXIS 71

Syllabus

<p>Road law — First pavement — Repaving—Affidavit of defense.</p> <p>1. A first pavement in the legal sense, which 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 the intent of changing an ordinary road into a street. It may be of macadam or of anything else. That is a matter of evidence only. 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 to be fairly inferred, then there is a paving whatever the material may be.</p> <p>2. In an action by a city to the use of a contractor to recover the cost of a macadam pavement laid on a cartway abutting on defendant’s property, an affidavit of defense is sufficient which avers that the city nine years previously had converted the street from its former character of a road into a public highway or city street, by laying upon it an original paving composed of material technically termed “Telford”; that this said “Telford” pavement is composed of materials of a much heavier character than those composing the pavement technically known as “Macadam” and that the manner in which “Telford” pavement is laid as opposed to the manner in which “Macadam” pavement is laid constitutes “Telford” pavement a much more enduring permanent and city street-like pavement than a “Macadam” pavement.</p> <p>3. In such a case the defendant cannot set up against the use plaintiff, as a counterclaim, the value of certain granite blocks which the defendant had laid in front of his premises, and which plaintiff had removed.</p>