This section was drafted from parts of Sec. 1, Act of June 5, 1913, P. L. 411, and Sec. 1, Act of April 28, 1899, P. L. 100.

(239). Section 2. At least ten days' notice shall be given by not less than ten handbills posted on the line of the proposed improvement, of any proposition to establish or change the grades of streets, roads, lanes or alleys, and in such notice a time and place shall be designated where objections thereto shall be heard.

This section was drafted from Sec. 1, Act of July 12, 1897, P. L. 246. The provisions in Sec. 1 of the above act for "the laying out, widening, straightening, extending or vacating of any streets" are incorporated in Chapter VI, Article IV.-See Secs. 1 and 2 of this latter article. (240). Section 3. Whenever any street, road, lane, or alley is graded, or changed in grade, pursuant to this article, and private property is damaged thereby, the damages may be awarded, and benfits, costs, and expenses, where the costs and expenses are not assessed according to the foot-front rule, may be assessed, as provided in chapter six, article two of this act, in the case of property taken, injured, or destroyed.

This section was drafted from Sec. 1, Act of April 28, 1899, P. L. 100. Previous to the adoption of this Code there had been two acts under which practically the same procedure could be taken to assess damages under the circumstances as outlined in Sec. 3 above. The one under the Act of May 24, 1878, P. L. 129, as amended by the Acts of April 27, 1911, P. L. 89, and June 24, 1895, P. L. 248, and the other under the Act of May 16, 1891, P. L. 75. The latter act was followed and re-enacted in Chapter VI, Article II, of the present act.

The Act of June 22, 1917, P. L. 627, including provisions similar to this section, applies to all boroughs, "whether incorporated under general or special law." See Secs. 854, 855 and 856.

Change of grade, when unauthorized and unratified by proper corporate action, does not make the borough liable in damages to the abutting owner, although the grade was given by the borough engineer. In re Change of Grade, Dorranceton Borough, 9 M. L. R. 87.

In proceedings against a borough for damages for change of grade, the borough cannot defend because it had not authorized a change of grade, where it appears the borough delegated authority to its officers to construct a paving, provided for in an ordinance, according to specifications; that a change of grade had actually been made; and that the borough had accepted the work.

Hobbs vs. Shamokin Borough, 66 Sup. Ct. 22.

(b) Grading, Curbing, Paving, Macadamizing Streets on Petition, and Assessment According to Benefits.

(241). Section 4. Upon the petition of a majority of property owners in interest and number, abutting on the line of any proposed improvement, to be verified by the affidavit of at least one of the petitioners, a majority in interest of owners of undivided interests in any piece of property to be treated as one person, a borough may

grade, curb, pave, or macadamize, or otherwise improve, any street or alley, or part thereof, or which may be, in whole or in part, boundaries thereof, and provide for the necessary drainage thereof; and may also provide for the improvement of any street, road, lane, or alley, and any sections or parts thereof, in length, in the space between the curb, gutter, or actual carriage-way line and the property line, either by an original work or improvement thereon, or by a change, repair, renewal, or alteration in the said highway, curb, parking space, or shade trees; or by changing, altering, renewing, replanting, pruning, or otherwise improving the same in any or all of said particulars.

(Amendment of July 6, 1917, P. L. 704, Sec. 7.)

This original section in the Act of May 14, 1915, P. L. 312, was drafted from part of Sec. 1, Act of April 28, 1899, P. L. 100. The provision providing for "necessary drainage" was new. By the above amendment that part of the present section was added which follows the words "necessary drainage thereof" and provides for improvements between the "carriage-way line and the property line."

A taxpayer is entitled to an injunction against a contractor who violates the specifications of a street paving contract. A taxpayer is entitled to have the contract performed according to its terms irrespective of the willingness of a borough engineer to permit variations. The question of fraud or collusion not material where result in general would be the same as if they existed.

Barrett et al. vs. Malloy et al., 19 Luz. L. R. 227.

In a change of grade proceedings against a borough, the defendant cannot claim that the plaintiff was estopped from proceeding for damages because he had signed the petition for the change of grade, where there is nothing in the petition releasing the borough expressly or impliedly from the claim for damages resulting from the change of grade. Hobbs vs. Shamokin Borough, 66 Sup. Ct. 22.

(242). Section 5. The majority in interest and number required. for such petitions shall be fixed as of the date of such petition. After the passage of any ordinance for the grading, curbing, paving, or macadamizing, or otherwise improving, any street, or alley, notice shall be given, within ten days thereafter, by handbills posted in conspicuous places along the line of the proposed improvement.

This section was drafted from part of Sec. 10, Act of May 16, 1891, P. L. 75, to which has been added the word "curbing."

(243). Section 6. The notice shall state the fact and the date of the passage of such ordinance, that the petition for the improvement was signed by a majority in interest and number of owners of property abutting on the line of the proposed improvement, and that any person interested, denying the fact that said petition was so signed, may appeal to the court of common pleas of the county, within thirty days from the passage of the ordinance.

This section was drafted from part of Sec. 10, Act of May 16, 1891, P. L. 75.

The time for the appeal was changed from sixty to thirty days.

(244). Section 7. Any person interested may, within thirty days
from the passage of such ordinance, present a petition to the court
of common pleas of the county, setting forth the facts; whereupon
the court shall determine whether such improvement was petitioned
for by the requisite majority. If the court shall find that it was
not so petitioned for, it shall quash the ordinance; but, if it shall
find that it was so petitioned for, it shall approve the same.
If no
appeal shall be taken, or if the court on appeal shall approve the
ordinance, the borough may proceed with the improvement, and
thereafter all parties shall be estopped from denying the fact that
such petition was properly signed.

This section was drafted from part of Sec. 10, Act of May 16, 1891,
P. L. 75.

The time for the appeal was changed from sixty to thirty days.

(245). Section 8. On petition, viewers shall be appointed as provided in chapter six, article two of this act, who shall assess the damages, costs, and expenses of such grading, curbing, paving, or macadamizing, or parking, shade-tree planting, or changing, altering, renewing, replanting, pruning, or improving, including the expenses for necessary drainage, upon the property benefited, according to benefits, if sufficient can be found; but, if not, the deficiency, when ascertained, shall be paid by the borough. The proceedings of the viewers and the proceedings on their report shall be as provided in chapter six, article two of this act.

(Amendment of July 6, 1917, P. L. 704, Sec. 8.)

The original section in the Act of May 14, 1915, P. L. 312, was drafted from Sec. 1, Act of April 28, 1899, P. L. 100. The provision "including the expenses for necessary drainage" was new. By the above amendment the following new matter was added:-"or parking, shade-tree planting, or changing, altering, renewing, replanting, pruning."

(c) Grading, Curbing, Paving, or Macadamizing Streets and Collection of Cost by Foot-Front Rule.

(246). Section 9. Boroughs; without petition, or upon petition verified by affidavit of at least one of the petitioners, may grade, curb, gutter, pave, macadamize, or otherwise improve streets, lanes. and alleys, or parts thereof, and collect from the owners of real estate abutting on the improvement by an equal assessment on the foot-front, the whole cost, or part thereof, including the expenses for the necessary drainage thereof, as follows, that is to say:

(Amendment of July 6, 1917, P. L. 704, Sec. 9.)

This original section in the Act of May 14, 1915, P. L. 312, was a draft of the enabling clauses of the following acts: Sec. 1, Act of May 19, 1897, P. L. 79; Sec. 1, Act of June 8, 1911, P. L. 714, and Sec. 1, Act of June 13, 1911, P. L. 887, both of which are amendments of Sec. 1, Act of

April 23, 1889, P. L. 44; Sec. 1, Act of April 20, 1905, P. L. 232, and Sec. 1, Act of May 12, 1911, P. L. 288. So much of the Act of April 14, 1905, P. L. 168, as provides for the verification of the petition, is included. The provisions for "lanes and alleys" and "the expenses for the necessary drainage" are new.

By the above amendment the following new matter was added, namely: "gutter," "or otherwise improve."

A taxpayer is entitled to an injunction against a contractor who violates the specifications of a street paving contract. A taxpayer is entitled to have the contract performed according to its terms irrespective of the willingness of a borough engineer to permit variations. question of fraud or collusion not material where result in general would be the same as if they existed.

Barrett et al vs. Malloy et al., 19 Luz. L. R. 227.

The

Sec. 7, Art. III of the Constitution prohibits the General Assembly from passing any local or special law authorizing the maintaining of roads, highways, streets or alleys.

(247). I. If the petition be for grading, curbing, paving, or macadamizing, and is signed by petitioners representing two-thirds in the number of feet of properties abutting on the proposed improvement, and the real estate on both sides of the street is assessable, then two-thirds of the cost may be collected.

This clause was drafted from Sec. 1, Act of June 8, 1911, P. L. 714, and Sec. 1, Act of June 13, 1911, P. L. 887, both of which are amendments of Sec. 1, Act of April 23, 1889, P. L. 44, the latter amendment overlooking the former. The provision concerning “grading” is new. (248). II. If the petition be for grading, curbing, paving, or macadamizing, and is signed by petitioners representing two-thirds in the number of feet of property abutting on the proposed improvement, and the real estate on one side only of the street is assessable, then one-half of the cost may be collected.

See note to Clause I above.

(249). III. If the petition be for grading, curbing, paving, or macadamizing, and is signed by petitioners representing four-fifths in the number of feet of property abutting on the proposed improvement, then the whole cost may be collected. The whole cost of such improvement shall not be assessed unless the petition shall contain a statement to the effect that the whole cost may be collected.

This clause was drafted from part of Sec. 1, Act of April 20, 1905, P. L. 232.

The provision in Sec. 1 of the above act designating who shall estimate the assessments will be found, as modified, in Sec. 15 of this article. The latter proviso making the whole cost assessable only if the petition says it "may be collected" is new.

(250). IV. If the petition be for grading only, and is signed by a majority in number and interest of the owners of property abutting the line of the proposed improvement, a majority of the owners of

undivided interest in any one piece of property to be deemed as one person, then the whole cost, or any part thereof, may be collected; and the council in making the assessment may provide for an equitable reduction, not exceeding one-third, from the frontage of all lots at street or other intersections where, for any equitable cause, an assessment for the full frontage would be unjust.

This clause was drafted from Sec. 1, Act of May 19, 1897, P. L. 79, omitting that part of the section which relates to the publication of the petition, which subject is covered in Sec. 10 of this article.

(251). V. If any street is graded, curbed, paved, or macadamized without a petition, as provided in this section, then two-thirds of the cost may be collected.

This clause was drafted from part of Sec. 1, Act of May 12, 1911, P. L. 288. This clause contains only the enabling provisions of Sec. 1, the remainder appearing in Secs. 13 and 14 of this article.

A borough has no right to impose an assessment, under this section, upon abutting property in order to reimburse it for the amount which it has paid as its share of the cost of an improvement made by the State Highway Department under the provisions of the act of May 31, 1911, P. L. 468.

In re Repair of Roads lying within the limits of a borough and forming part of a State Highway Route. Opinion by William H. Keller, First Deputy Attorney General, 3 Dept. Rep. 3053; and in Punxsutawney Borough vs. Nordstrom, 61 Sup. Ct. 253, it was declared such right "is at least doubtful." But where the street was improved beyond the sixteen-foot width by the borough, the cost of improving that portion which was not embraced in the sixteen foot strip improved by the State could be assessed against the tabutting properties. See 3 Dept. Rep. 3053.

Where an ordinance declares that two-thirds of the costs of street paving shall, under an act of Assembly, be assessed upon abutters, and under a franchise from the borough a street railway company is obliged to pay a portion of the paving, the portion so paid inures to the benefit of the borough's one-third of the costs and an abutter is not entitled to an abatement except where the amount paid by the street railway company exceeds the borough's one-third share, and then to receive a credit for the proportional share of said excess.

Borough of Sharpsville vs. Ford Randall, 10 M. L. R. 55.
See note to Sec. 259.

(252). Section 10. Whenever an ordinance is passed for any of the purposes authorized by the preceding section, pursuant to a petition therefor, ten days' notice shall be given by handbills posted in conspicuous places along the line of the proposed improvement. The notice shall state the fact and date of the passage of the ordinance, that the petition for the improvement was signed by a majority of free-holders in interest and number, or by the owners of property representing two-thirds or four-fifths in the number of feet abutting the line of the proposed improvement, as the case may be.