Sisters of the Third Order of Saint Francis v. Millvale Borough

Citations

• 69 Pa. Super. 302
• 1918 Pa. Super. LEXIS 74

Syllabus

<p>Road law- — Widening—Grading and paving — Damages—Benefits —Width of street — Report of viewers — Noncompletion of work.</p> <p>Where a borough ordinance provided for the grading, paving and curbing of a street which had been dedicated by a plan of lots, and the plans for the improvement are made and carried out on the assumption that the street was fifty feet in width, and a jury of view appointed under the Act of May 26, 1891, P. L. 117, assessed benefits from which assessment an appeal was taken, it is reversible error, for the court at the trial of the appeal, to refuse to admit evidence that the street was in fact less than fifty feet in width, that it had been widened in the improvement, and that land had been taken by the borough, if it appears that the plaintiff in the appeal had filed a petition for the appointment of viewers to assess damages for the widening of the street, and that proceedings under this petition had been vacated at the instance of the borough on the ground that the plaintiff had claimed damages before the first viewers, and that all matters in controversy were before the court upon the appeal from the assessment of such viewers.</p> <p>Such action of the borough estops it, on the trial of the appeals, from objecting that the owner had not pursued his action at law for damages for the taking of his land.</p> <p>The widening of the street.is not an usual and necessary incident in curbing, grading and paving where the land taken is used for travel. Where additional land is necessary outside of the street lines to sustain the slope or. embankments, such taking may be incident to the grading, but this is not the case where the land taken is used for actual foot travel.</p> <p>On the trial of an appeal from the report of a jury of view assessing benefits for grading, paving and curbing a street, the property owner cannct defend that there was not a substantial performance of the work inasmuch as the grading was not completed, if it appears