P. L. 184. 12 June 1978 § 3. between said township or townships and borough or boroughs, and between the several boroughs into which any township shall have become merged, as aforesaid, and shall thereupon decree the proportion of said indebtedness which each township and borough shall pay; in making said adjustment, as applied to each of said boroughs, reference shall be had to the time of incorporation of such borough, and to the debts then existing, whether since paid or not, and also to the several amounts of township taxes then unexpended; and the said adjustment shall be based upon the assessment of said township or townships for the year in which such borough was incorporated: Provided, That in ascertaining said indebtedness, neither pending actions nor claims against said township or townships, founded on tort, shall be included, unless the same shall in the meantime have been prosecuted to final judgment. Ibid. § 4. Notice to be given 208. Three months' public notice shall be given under the order of said court to all persons having claims against said township or townships, excepting claims in to present claims. pending actions and claims founded on tort as aforesaid, to present the same, on or before the day therein named; and all persons not presenting their said claims on or before the said day, shall be for ever debarred from enforcing collection of the same; said notice to be published in not less than two newspapers of the proper county, if there are so many printed in said county, or if there be but one newspaper printed therein, then said notice shall be printed in the same, and shall be published in any other manner directed by said court. Ibid. § 5. Powers of the court. Ibid. § 6. Receivers may appointed. Ibid. § 7. credits. be 209. The said court shall have power to make all needful rules, orders and decrees in the premises, and for the collection and payment by said township or townships, borough or boroughs, of the share of said indebtedness respectively apportioned to them, and may order the proper officers of any said township or townships, borough or boroughs, or of either of them, to collect by special taxation an amount sufficient to pay the same, either in any one year, or by annual instalments, as to the court shall appear just and reasonable. 210. The said court shall have power to appoint a receiver, to whom the money due from each township and borough for the purpose aforesaid shall be paid, and it shall be his duty to pay over the amount so received by him to the holders of said township indebtedness, in such order or in such proportions as the court shall direct; and in case of any special taxation in any said township or borough, or in all of them, being ordered as aforesaid, the collector of said special tax shall pay the same directly to said receiver. 211. Each borough, in any of the cases aforesaid, shall be credited with the Apportionment of proper share of such indebtedness due to said township or townships at the time of incorporation of such borough, as shall have since been collected, and shall likewise be credited with its proper share of any unappropriated balance in the treasury of said township or townships, at the end of the current year during which such borough shall have been incorporated; and the said court shall have like power to equitably adjust and apportion the same. Costs. Ibid. § 8. Ibid. § 9. Borough to suc 212. The costs of said proceedings shall be paid by the said several townships and boroughs, in such proportions as the said court shall adjudge; and the orders and decrees of the said court in (such) proceedings may be enforced by attachment. 213. Whenever any township has been or shall hereafter be changed or merged into one borough, the said borough shall succeed to all the rights and liabilities ceed to the rights of said township; and in all actions pending by or against said township, the said and liabilities of the township. 8 April 1851 § 24. P. L. 325. borough shall be substituted as party instead of said township; and in all actions thereafter brought for matters in behalf of or against said township, the, said borough shall be the party plaintiff or defendant, as the case may be, instead of said township. 214. Every borough incorporated from within a township or townships, shall be a distinct district separate therefrom, but shall pay its just proportion of the To pay proportion indebtedness of such township or townships, for the repairs of roads existing at the time of its incorporation. of road debt. 3 April 1851 § 27. P. L. 326. Limitation of powers. Private property not to be taken without compensation. 215. The powers and duties of the corporation shall be subject to the following provisions: 216. I. Private property shall not be taken for the use or purpose of the corporation, without the consent of the owners, or until just compensation shall be made therefor, according to the laws of this commonwealth. 217. II. Complaint may be made to the next court of quarter sessions of the Parties aggrieved proper county, upon entering into recognizance, with sufficient security according to law, to prosecute the same with effect, and for the payment of costs, by any person aggrieved in consequence of any ordinance, regulation or act done, or purporting to be done, in virtue of this act, and the determination and order of the said court thereon shall be conclusive.(a) may complain to quarter sessions. (a) So amended by act 22 May 1883. P. L. 40. P. L. 326. reference to streets, &c. 218. III. Upon the complaint of any person or persons aggrieved by any regula 3 April 1851 § 27. tion under the provisions of this act in relation to the laying out, widening and straightening the roads, streets, lanes, alleys, courts and common sewers, foot-walks, Jurisdiction of pavements, gutters, culverts and drains, or of the opening, grading or other regula- quarter sessions in tions thereof, the said court shall take such order as may be just and reasonable, and the final order of the said court shall be conclusive: Provided, That like proceedings shall be had for the opening, widening and straightening of the roads, streets, lanes, courts, alleys, foot-walks, pavements, gutters, culverts and drains, laid out and ordained in accordance with the provisions of this act, as are provided by law for the laying out and opening of public roads within this commonwealth: Provided also, That every jury appointed to view, review, lay out, widen or straighten, or vacate any road, or part of a road, in any borough in this commonwealth, shall have due reference to the town plot herein authorized and directed, and to the general arrangement, plan, convenience and advantage of the borough, and shall set forth the facts fully in their report: Provided further, That such streets, lanes and alleys, foot-walks and pavements, shall not be opened for public use until the damages shall be liquidated, and upon any amounts due or to become due by borough corporations, for the purposes aforesaid, interest shall be allowed and paid from the date of the adjudication of said damages. (a) 219. IV. The same, when duly opened according to law, or by agreement of par- When opened to ties, are hereby declared public highways, over which the corporation shall exercise be public highjurisdiction under the provisions of this act. ways. build over lines of 220. V. It shall not be lawful for any owner or owners, occupier or occupiers of Owners not to lands, buildings or other improvements, to erect any buildings or make any improve- streets, after they ments within the lines of the roads, streets, lanes, alleys, courts or common sewers, are laid out. laid out, widened or straightened, or ordained to be laid out, widened or straightened, after due notice thereof, and if any such erection or improvement shall be made, no allowance shall be made therefor in the assessment of damages, but the loss or injury sustained by the laying out of the same, or the enactment of such widening or straightening thereof, shall be determined by agreement of the parties, or by appeal to the court as herein directed: Provided, That all damages assessed beyond the value of the land thus appropriated to public use shall be paid by the corporation, and the jury shall separately assess the same. (b) 221. Whenever the burgesses and town council of any borough shall open, or be 22 April 1856 § 1. about to open any streets or alleys therein, (c) or to widen or extend the same, (d) it P. L. 525. shall be lawful for said burgesses and council, or a majority of them, to apply by How streets to be petition to the court of quarter sessions of the peace of the proper county, setting opened. forth the facts and describing the locality of such streets or alleys, and praying said court to appoint seven disinterested freeholders of such borough, who, after being first duly sworn or affirmed to perform their duties under this act with Duties of viewers. impartiality and fidelity, shall proceed to view the premises described in said petition, having regard to both the advantages and disadvantages caused to the several properties along the line of and adjoining said streets and alleys, and shall assess and allow to all persons injured thereby, such damages as they shall have sustained respectively, over and above all advantages; and shall also make assessments for Persons benefited contribution upon all such properties as shall be benefited by the opening, widen- to be assessed. ing or extension of said streets and alleys, such sums respectively as they may have been benefited over and above all disadvantages. Ibid. § 2. 222. The said viewers shall make report of their proceedings in writing to the next session of said court, describing the properties upon which assessment have been made, specifically stating whether for contribution or for damages, with the Report of viewers. amounts respectively, and the said court may, at the next session thereafter, or at Powers of the any subsequent session, on the hearing of such parties as choose to contest the court. same, modify, approve and confirm the said report, which confirmation shall be final and conclusive upon all parties; and the said burgesses and council may Collection of asproceed to collect all such damages and assessments for contribution, in the same sessments. manner as other debts due such boroughs are by law collectable. 223. In all cases where the proper authorities of any borough within this commonwealth, have or may hereafter change the grade(e) or lines of any street or (a) So amended by act 22 May 1883. P. L. 40. (b) This act only applies to cases in which the borough authorities have power to lay out new streets. Road in Milton, 40 P. S. 300. (e) This means such as begin and end in the borough. Summerset and Stoystown Road, 74 P. S. 61. Flower Street, 1 Del. Co. R. 90. In such case, the courts have no jurisdiction under the general road law. South Chester Roud, 80 P. S. 370. And see Norwegian Street, 81 Ibid. 349. Brady Street, 12 W. N. C. 120. (d) See Schuylkill County's Appeal, 38 P. S. 459. Case of Franklin Street, 2 Luz. L. Obs. 67. 24 May 1878 § 1. P. L. 129. is the owner of the abutting property at the time of the actual grading. Jones v. Borough, 144 P. S. 638. Upon the change of grade of a borough street, the damage is to be measured by the change in the market value in the property; the cost of filling the plaintiff's lot and raising his buildings cannot be allowed. Chambers v. South Chester Borough, 140 P. S. 510. The burgess and council may apply for the appointment of viewers. In re Viewers, 6 Kulp 13. This act is retrospective as well as prospective. Beck v. Borough, 2 C. C. 511. But no recovery can be had for injuries from change of grade, before the adoption of the constitution. Folkenson v. Borough, 8 Atlan. 869. The statute of limitations applies to actions for change of grade; and this, though this act contains no clause of limitation. Craft v. Borough, 15 Atlan. P. L. 129. pointed. See amendment 24 May 1878 § 1. alley, or in any way alter or enlarge the same, thereby causing damage to the owner or owners of property abutting thereon, without the consent of such owner, or in Damages for case they fail to agree with the owner thereof for the proper compensation for the change of grade. damage so done, or likely to be done or sustained, by reason thereof, or by reason of the legal incapacity of such owner, no such compensation can be agreed upon, the court of common pleas of the proper county, on application thereto by petition, either by the burgess and council of such borough, or the owner of the propViewers to be ap- erty for which damage is claimed, or any one on behalf of either, shall appoint five disinterested citizens of such county, neither of whom shall be owners of property on said street, who shall meet upon the premises, at a time by them to be appointed, of which they shall give ten days' notice, by handbills posted up on such street in the vicinity of the premises; and the said viewers, or any three of them, having been first duly sworn or affirmed to perform their duties justly and impartially and a true report make, shall view the said street or alley, and premises affected by the change or enlargement thereof, having due regard to and making just allowance for the advantages which may have resulted, or which may seem likely to result, to the owner or owners of property abutting thereon, for which damages may be allowed or claimed, and after such comparison, shall estimate and determine whether any, and if any, how much damage such property owner may have sustained, or seems likely to sustain, by reason thereof, and make report of the same to the next term of said court; and if no exceptions be filed within ten days thereafter, the court shall confirm the same and enter judgment therein with costs; (g) each viewer to be entitled to receive one dollar and fifty cents per day; from which judgment either party shall be entitled to an appeal as in other cases. (h) Report. 23 April 1889 § 1. P. L. 44. Councils may re paved, curbed or macadamized. Costs and expenses. 224. From and after the passage of this act, the council of any incorporated borough of this commonwealth shall have the power to require, by ordinance, and cause to be paved, curbed or macadamized with brick, stone or other suitable quire streets to be materials, any public street or thoroughfare, or parts thereof, which is now or may hereafter be laid out and opened in any of said boroughs, and collect, in the manner hereinafter provided, two-thirds of the cost and expense of the same, from the owners of the real estate bounding or abutting thereon, by an equal assessment on the feet front bounding or abutting as aforesaid; said assessment to be estimated by the street commissioner or person in charge of said work or other competent authority, designated by the council of said borough:(i) Provided, That the council of any such borough shall not require or cause to be paved, any street or thoroughfare, or any part thereof, except upon the petition of two-thirds of the owners of property representing not less than two-thirds in number of feet of the properties fronting or abutting on said street or thoroughfare, or the part thereof, proposed to be paved. Not to act unless upon petition of two-thirds of the property owners. Ibid. § 2. filed with clerk. 225. All municipal assessments for paving, curbing or macadamizing as aforeAssessments to be said, shall be filed with the clerk or secretary of the borough, who shall, thereNotice to be given. upon, cause thirty days' written or printed notice to be given to each party assessed, either by service on the owner or agent, or left on the assessed premises, that the assessments are due and payable. Ibid. Unpaid assessments to be given to borough solicitor for collection. Penalty. Ibid. § 3. Assessments not to be liens for more than six 226. If said assessments, or any of them, shall remain unpaid at the expiration of said notice, the same shall be placed in the hands of the borough solicitor for collection, whose duty it shall be to collect the same, together with five per centum additional as attorney's commission, and interest from the completion of the paving, curving or macadamizing, by a municipal claim filed against the delinquent owner describing the premises upon which the writs of scire facias may issue. When an owner has two or more lots against which there is an assessment for the same improvement, all of said lots shall be embraced in one claim. 227. No assessments for paving, curbing or macadamizing under the provisions of this act, shall be a lien on real estate for more than six months from the time of the completion of such work, unless a claim for the same shall be filed in the office thonotary's office. of the prothonotary of the proper county within that time, nor shall the same con months unless filed in the pro 216. Beck v. Borough, 2 C. C. 511. No right of action accrues until the actual physical change is made. Rodgers v. Borough, 2 C. C. 518. And the proceeding must be begun within six years thereafter. Landes v. Borough, 21 W. N. C. 212. The act applies where the street was originally opened and travelled on the natural surface. Longstreth v. Borough, 2 Chest. 86. But not to a mere repairing of the roadway where no essential change of grade was made. Zearfoss v. Council, 1 Montg. 157. The petition need not set forth a description of the premises nor the kind of change made; nor, if presented by the owner, need it set forth the place of meeting. A motion to quash is in time even after the viewers have met and made their report. Rodgers v. Borough, 2 C. C. 518. The appeal upon exception is directly to the supreme court. Borough v. Poxon, 123 P. S. 497. (g) Such judgment may be enforced by mandamus execution. Lex Street, 12 Phila. 622. The sole remedy of a party injured is under this act; trespass will not lie against the borough. Beltzhoover v. Gollings, 101 P. S. 293. (h) This act changes the law as laid down in O'Connor v. Pittsburgh, 18 P. S. 187. Ridge Street, 29 Ibid. 391; and re-establishes the doctrine of Judge Lowrie, in Allegheny County v. Rowley, 4 Clark 379. (i) The cost of macadamizing intersections must be apportioned among all the abutting property owners. Manner of estimating the feet frontage. Borough v. Entrekin, 7 C. C. 469. This act applies to all boroughs with special charters. Borough v. Laird, 8 C. C. 608; affirmed in 138 P. S. 533. tinue a lien longer than five years from the time of filing the claim, unless revived 23 April 1889 § 3. by scire facias in the manner provided by law in the case of mechanics' claims. P. L. 44. years unless re 228. Every claim shall be a plain statement, in which the corporate name of Nor to continue the borough shall be used as a plaintiff, and the owner or owners named as de- longer than five fendants, and shall contain a description of the property or properties against vived by scire which it is filed, the nature and kind of work done, and the time when the same was completed; and every claim filed shall be primâ facie evidence of all matter therein set forth. facias. Ibid. § 4. Contents of claim. Ibid. § 5. Owner. Ibid. 229. The term owner shall be construed to mean all individuals, corporations, public or private, and associations having any title or interest in the property assessed. 230. If the owner to whom notice is required to be given by this act, is a non-resident of the borough, and his, her or their place of residence in unknown to the clerk or secretary of the borough, or if the ownership of the property cannot be service of notice. ascertained, the notice shall be posted on the premises, and a copy left with the occupant if there be one. Where notice to be posted. Ibid. § 6. Manner of collec 231. Where the defendant in any writ of scire facias shall be a corporation, and the property assessed cannot be sold, the scire facias shall be proceeded upon to judgment, and a writ of fieri facias shall be issued thereon, by virtue tion when defendof which any personal property of the corporation, wherever situated, may be ant is a corporalevied on and sold, or an attachment in execution may be issued as in other cases. tion. P. L. 220. 232. The burgess and town council of any borough within this commonwealth, 15 May 1889 § 1. now or hereafter to be incorporated, upon a petition of a majority of the property owners on any street or streets in any said borough, shall have full power May adopt sewage and authority by ordinance or ordinances duly passed, to adopt and construct system. such system or systems of public sewerage, as in the judgment of the said council may be necessary from time to time, for the disposal of the waste water and other sewage matter from the said borough; and for this purpose the said burgess and council shall have full power to fix the place or places in and along the streets, lanes, alleys, courts or highways in said borough, where sewer mains or drains and branches thereof shall be laid down, and to prescribe the manner in which they shall be constructed. Ibid. § 2. 233. Whenever any borough shall determine to construct any public sewer, it shall have power, by ordinance or ordinances duly passed, to assess the cost thereof Assessment of as a sewage tax upon the property adjoining or adjacent to the same, either by the cost on adjoining foot front or in such other manner and in such proportions and amounts as to the properties. burgess and town council may seem just and equitable, which assessment of sewage tax, duly certified under the seal of the said borough, attested by the burgess or the president of council and clerk thereof, shall be collectable from the owner of such property as debts of like amount are now by law collectable, and such certificate of assessment shall be primâ facie evidence in any suit for recovering the same, of the correctness and validity thereof: Provided, That nothing in this act shall prevent the construction of any public sewer and the payment of the same by general taxation, when the same is for the general health and public welfare of said borough. Ibid. § 3. When claim may 234. If the owners or owner of any property against which an assessment for sewage tax has been laid, as provided for in the preceding section, shall fail or refuse to pay such assessment within sixty days after having notice of the same, be filed. it shall be lawful for the said borough, and its corporate name, to immediately file a claim therefor in the court of the common pleas of the proper county, against the property upon which said assessment is laid, which claim shall set forth the name of the then owner or reputed owner of the property and a sufficient description of the property to identify it with the amount of the assessment, and shall be indexed as mechanics' or municipal claims are in the said court. And from the time of filing such claim it shall be and remain a lien upon the property described therein, prior to all others thereafter attaching thereto, for the period of five years; and said lien shall be collectable, with Lien for five years interest from the date of filing and costs, in the same manner as mechanics' liens are collectable in this commonwealth. 235. The burgess and town council of any borough, upon adopting and proceeding to construct a system of public sewage, shall have full power and authority by ordinance or ordinances duly passed to provide for and regulate the manner in which, and the terms upon which, connections therewith by property owners may be made, and whenever the said borough shall deem it necessary and proper for the preservation of the public health or for other cause, either upon the report of any health committee or board of health or otherwise, that any property owner should connect his or her premises with the public sewer, for the purpose of having the fecal matter and other wastes therefrom discharged into such sewer, the burgess and town council thereof shall have power to compel such connection to be made, whenever such property abuts upon or is within fifty feet of a sewer main or branch thereof, in the same manner and under the same regulations as other connections with said sewer are made. Ibid. § 4. Connections. 236. And if any property owner, after sixty days' notice so to do by resolution 15 May 1889 § 4. of the said council, shall refuse to have his premises so connected, it shall be P. L. 220. P. L. 220. 15 May 1889 § 4. lawful for the said burgess and council to enter upon said premises and have the same done, and to collect the cost thereof as a sewage tax from such property owner, either by personal action or by lien against the premises, in the same manner as is hereinbefore provided for the collection of other sewage tax. Refusal to connect. Ibid. Penalties. Ibid. § 5. May extend sewer mains beyond borough limits. May enter upon highways and private lands. Notice to landowners. Ibid. § 6. Damages to be secured before entry on private property. 11 May 1893 § 1. P. L. 44. Board of health to consist of five persons to be appointed. Ibid. § 2. Duties and powers of board, how regulated. Ibid. § 3. Members to be 237. The said council shall also have power to enforce, by appropriate penalties, such regulations as it may ordain with reference to the proper use, connection with and maintenance of such sewage system. 238. To effectually carry out the foregoing provisions of this act, the burgess and town council of any borough shall have full power to do and ordain whatever may be necessary in order to secure a proper and safe disposal of the sewage from any borough; and for this purpose it shall be lawful for the said burgess and town council to extend the necessary sewer mains or outlets beyond the limits of such borough to the point or points where such sewage is to be deposited; and the said borough, by its agents, engineers and workmen, shall have full power to enter upon and construct such mains or outlets in and along any public highway, or in and across any private lands, at such place or places and in such manner as shall by ordinance be directed, and likewise to enter upon, condemn and take such lands, property or materials for the construction of all such sewer mains or outlets and works as may be necessary for the disposal of such sewage: Provided, however, That no borough ordinance for the construction of any sewer beyond borough limits, or works connected therewith, shall be adopted until notice thereof has been given, by the publication of the proposed ordinance at length for at least four weeks in not less than one newspaper published in said borough, or in the county in which said borough is situate, and also by having copies of such proposed ordinance served upon all the land-owners through whose land such sewer is to pass, at least ten days before final action thereon. 239. Before any entry shall be made upon private property, without the owner's consent, for the purpose of laying down any sewer or outlet therefrom or constructing works connected therewith as provided for in the preceding section, security for all damages which may be done thereby shall first be given to such owner, in such form and in such amount as a court of common pleas of the proper county may direct, and all damages caused by the construction of any such sewer or sewer works, or by the taking of lands and materials therefor, shall be ascertained in the same manner as damages for the taking of lands for railroad purposes are now ascertained in this commonwealth, and shall be paid out of the borough treas ury. XIX. Board of health. 240. It shall be the duty of the president of the town council, or burgess where he is the presiding officer, of every borough in this commonwealth, within six months after the passage of this act, to nominate and by and with the consent of the council to appoint a board of health of such borough(k) to consist of five persons not members of the council, one of whom shall be a reputable physician of not less than two years' standing in the practice of his profession. At the first appointment the president of the town council, or burgess where he is the presiding officer, shall designate one of the members to serve for one year, one to serve for two years, one to serve for three years, one to serve for four years and one to serve for five years, and thereafter one member of said board shall be appointed annually to serve for five years. The board shall be appointed by districts to be fixed by the town council, representing as equally as may be all portions of the borough. The members shall serve without compensation. 241. The duties, responsibilities, powers and prerogatives of said board shall be identical with those assigned to boards of health of cities of the third class, by sections three, four, five, six and seven of the article eleven of the act of May twentythird, one thousand eight hundred and eighty-nine, entitled "An act providing for the incorporation and government of cities of the third class," which reads as follows, due allowance being made for the difference in the municipal government of cities and boroughs. 242. The members of the board shall severally take and subscribe the oath prescribed for borough officers, and shall annually organize by the choice of one of sworn and shall or their number as president. They shall elect a secretary, who shall keep the min ganize annually. Secretary and health officer. Salaries. Bonds. utes of their proceedings and perform such other duties as may be directed by the board, and a health officer who shall execute the orders of the board, and for that purpose the said health officer shall have and exercise the powers and authority of a policeman of the borough. The secretary and the health officer shall receive such salary as may be fixed by the board, and shall hold their offices during the pleasure of the board. They shall severally give bond to the borough in such sums as may be fixed by ordinance, for the faithful discharge of their duties, and shall also take and subscribe the oath required by the members of the board. All fees which shall be collected or received by the board, or by any officer thereof in his official capacity, shall be paid over into the borough treasury monthly, together (k) This act is constitutional. Smith v. Baker, 14 C. C. 65. |