(151). XLIII. XLIII. To file and collect municipal claims for waterrents, lighting rates, and sewer rates in the manner now provided by law. (Amendment of July 6, 1917, P. L. 704, Sec. 6.) CHAPTER VI. SPECIAL POWERS. ARTICLE I. EMINENT DOMAIN. (For additional provisions relative to Eminent Domain, see Appendix, Chapter VII, infra Secs. 845 to 851, inc.) (152). Section 1. Boroughs may enter upon the lands and premises of any person, for the purposes authorized by this act. This section was drafted from Sec. 2, Clause 8, Act of April 3, 1851, P. L. 320. (153). Section 2. No borough shall exercise the right of eminent domain as against land now occupied by any building which was used during the Colonial or Revolutionary period, as a place of Assembly by the Council of the Colony of Pennsylvania, the Supreme Executive Council of the Commonwealth of Pennsylvania, or the Congress of the United States; or as against the land occupied by any fort, redoubt, or blockhouse erected during the Colonial or Revolutionary period, or any building used as headquarters by the Commander-in-Chief of the Continental Army; or as against the site of any building, fort, redoubt, blockhouse, or headquarters which are preserved for their historic associations, and not for private profit. The Colonial and Revolutionary period shall be taken as ended on the third day of September, one thousand seven hundred and eighty-three. This section was drafted from Sec. 1, Act of May 10, 1907, P. L. 196. (154). Section 3. Whenever, in any condemnation proceedings, any borough has tenderd a bond to secure the payment of damages, and the same has been accepted, or, if the acceptance has been refused and the bond has been filed in and approved by the court, the borough shall have the right to immediate possession of the property. This section was drafted from part of Sec. 1, Act of June 7, 1907, P. L. 461. The latter part of Sec. 1, of the above act, dealing with notice in the event of a refusal to move, by owner, lessee or occupier, is found in Sec. 4 of this article. (155). Section 4. If the owner, lessee, or occupier shall refuse to remove his personal property or give up possession, the borough may serve written notice upon such owner, lessee, or his agent, or the occupier, to remove his personal property and give up possession of such property, within sixty days from the date of the service of such notice. This section was drafted from part of Sec. 1, Act of June 7, 1907, P. L. 461. (156). Section 5. If the owner, lessee, or occupier shall refuse to remove his personal property and give possession, upon proof of the service of the notice, specified in section four of this article, a writ of habere facias possessionem shall forthwith issue, directing the sheriff to give to the borough possession. This section was drafted from Sec. 2, Act of June 7, 1907, P. L. 461. (157). Section 6. Whenever any court shall order any borough to enter security for the payment of damages for the taking, injury or destruction of land or materials by right of eminent domain, the bond of the borough shall be taken without sureties. This section was drafted from Sec. 1, Act of May 23, 1891, P. L. 109. Sec. 1, Act of 1891, provided damages for the taking of land "for any street, road or highway." This provision has been broadened in the present section to include "damages for the taking, injury or destruction of land or materials" without specifying the use to be made of the same. (158). Section 7. In all cases of the appropriation of land for public use, other than for roads or streets, it shall not be lawful to assess any portion of the damage done to or value of the land so appropriated, against the other property adjoining or in the vicinity of the land so appropriated. This section was drafted from Sec. 1, Act of June 15, 1871, P. L. 391. (159). Section 8. Viewers or juries of view appointed by any court to assess damages and benefits, due to the taking, injury, or destruction of private property in and by the construction or enlargement of any public work, highway, or improvement, shall make their reports within a time which the court shall fix when appointing them. This section was drafted from part of Sec. 1, Act of March 18, 1903, P. L. 28. The provision in Sec. 1 of the above act relating to the extension of time for filing the report, is found in Sec. 9 of this article. (160). Section 9. If any of the viewers or juries of view appointed as provided in the preceding section shall, for any reason appearing sufficient to the court, be unable to file its report within the period so fixed, the court may, either before or after the expiration of the time fixed, extend the time for the filing of such report. This section was drafted from part of Sec. 1, Act of March 18, 1903, P. L. 28. (161). Section 10. In any proceeding to ascertain the damages caused to any owner of lands, by reason of the appropriation of a right of way or easement by any borough, where the owner and borough cannot agree upon the amount of damage done, the parties may, by agreement, waive the right to have such damages assessed, and the owner may file his claim in the court of common pleas of the county, and rule the defendant to plead thereto within fifteen days from the service of such rule upon the borough, and the suit shall be proceeded with as if an award of viewers had been filed and an appeal had been taken therefrom. This section was drafted from Sec. 1, Act of May 21, 1895, P. L. 89. (162). Section 11. Either party to such an action may on motion have the jury visit and view the premises over or through which the proposed right of way or easement may extend. This section was drafted from Sec. 2, Act of May 21, 1895, P. L. 89. (163). Section 12. In all cases of damages assessed against any borough for property taken, injured, or destroyed by the construction or enlargement of their works, highways, or improvements, whether such assessment shall have been made by viewers, or otherwise, than upon trial in court, and an appeal is not provided for, an appeal may be taken by either party to the court of common pleas of the county within thirty days from the filing of the report. This section was drafted from Sec. 1, Act of June 13, 1874, P. L. 283. (164). Section 13. Any appeal taken pursuant to the preceding section shall be signed by the party taking the same or by his agent or attorney, and shall be accompanied by an affidavit of the party appellant, or of the agent or attorney, that the same is not for the purpose of delay, but because the affiant firmly believes that injustice has been done. This section was drafted from Sec. 2, Act of June 13, 1874, P. L. 283. (165). Section 14. When no appeal is taken in accordance with the provisions of sections twelve and thirteen of this article. and judgment is entered, and the party to whom damages have been awarded refuses to accept payment of such award or judgment, then it shall be lawful for such borough, upon petition to the court, after notice as ordered by court, to pay the amount of the award and costs into the court. The court, upon such payment, shall order the satisfaction of the award or judgment. This section was drafted from Sec. 1, Act of June 2, 1891, P. L. 172. CHAPTER VI. SPECIAL POWERS. ARTICLE II. CONDEMNATION PROCEEDINGS IN COURT OF COMMON PLEAS (For additional provisions relative to Condemnation Proceedings, see Appendix, Chapter VII, Secs. 845 to 851, inc.) (166). Section 1. In the laying out, opening, widening, extending, vacating, grading, or changing the grades or lines of streets, lanes or alleys, the construction of bridges and the piers and abutments therefor, the construction of slopes, embankments and sewers, the erection and extension of water-works, wharves and docks, public buildings, public works, filtration-plants, sewerage systems, sewage and garbage disposal plants, gas-plants, electric light plants, and libraries, the establishing of parks and playgrounds, and the changing of water-courses, a borough may enter upon, appropriate, injure, or destroy private lands, property, or material. This section was drafted from Sec. 1, Act of June 12, 1893, P. L. 459. "The erection and extension of water-works, wharves and docks, public buildings, public works, filtration-plants, sewerage systems, sewage and garbage disposal plants, gas-plants, electric light plants, and libraries, the establishing of parks and playgrounds," is new. The provisions in Sec. 1, Act of 1893, dealing with the appointment and procedure of viewers is found in Secs. 2 and 4 of this article. The Act of June 22, 1917, P. L. 627, provided that Article II of Chapter VI should apply to all boroughs, "whether incorporated under general or special law" in the assessment of damages incurred in connection with roads, streets, lanes or alleys. See Secs. 854, 855, 856. Plaintiff in a bill in equity to restrain a borough council from taking land for public use as an alley, must prove affirmatively that the council is acting contrary to the public interest and is exceeding its power under the law. The council is presumed to be acting in the interest of and for the benefit of the public. Sipe vs. Borough of Tarentum, et al., 65 P. L. J. 567. (167). Section 2. Except as is in this act otherwise provided, in case the compensation for damages or benefits accruing therefrom have not been agreed upon, any court of common pleas, or any law judge thereof in vacation, on application thereto by petition by the 4 borough or any person interested, shall appoint three viewers from the board of viewers of the county, and appoint a time, not less than twenty nor more than thirty days thereafter, when the viewers shall meet upon the line of the improvement and view the same and the premises affected thereby. This section was drafted from part of Sec. 1, Act of June 12, 1893, P. L. 459. The provision for "three viewers from the board of viewers of the county" was inserted in place of "three discreet and disinterested freeholders as viewers" as provided in the above section of the Act of 1893. This complies with the Act of June 23, 1911, P. L. 1123, establishing a county board of viewers. It is not necessary to attempt to agree with property owners concerning damages or benefits before asking for the appointment of viewers. Hanover Borough Sewers, 30 York 185; s. c. 8 M. L. R. 237. (168). Section 3. The viewers provided for in the preceding section may be appointed before or after the entry, appropriation or injury of any property or materials for constructing such improve ments. This section was drafted from part of Sec. 4, Act of May 16, 1891. P. L. 75.. The provision of this section of the above act relating to costs is found under Sec. 13 of this article. (169). Section 4. Except when otherwise in this act provided, the viewers shall give at least ten days' notice of the time of their first meeting, by publication in one or more newspapers of the county, and by handbills posted upon the premises, or otherwise as the court shall direct. Where the publication is in more than one newspaper, one of the newspapers may be in the German language. This section was drafted from part of Sec. 1, Act of June 12, 1893, P. L. 459. (170). Section 5. The viewers, having been sworn or affirmed faithfully, justly, and impartially to decide and a true report to make concerning all matters to be submitted to them, and in relation to which they are authorized to inquire, and having viewed the premises and examined the property, shall hear all parties interested and their witnesses, and shall determine the damages for property taken, injured or destroyed, and to whom the same is payable; and having determined the damages, together with the benefits, they shall prepare a schedule thereof. This section was drafted from part of Sec. 1, Act of April 2, 1903, P. L. 124. The provisions in Sec. 1 of the above act dealing with the notice of the filing of the report, service of notice, the report and confirmation of the report, are found in Secs. 9, 10, 11 and 12, respectively, of this article. |