Pennsylvania Act 1891-59 — MUNICIPAL ROADS, LAYING OUT AND MAINTAINING

Act text

MUNICIPAL ROADS, LAYING OUT AND MAINTAINING
                   Act of May 15, 1891, P.L. 75, No. 59               Cl. 53
               (Act repealed in part June 4, 1901, P.L.364,
                 No.228; insofar as relates to boroughs,
             May 14, 1915, P.L.312, No.192 and cities, third
                  class June 23, 1931, P.L.932, No.317)

                                  AN ACT

     In relation to the laying out, opening, widening, straightening,
        extending or vacating streets and alleys, and the
        construction of bridges in the several municipalities of this
        Commonwealth, the grading, paving, macadamizing or otherwise
        improving streets and alleys, providing for ascertaining the
        damages to private property resulting therefrom, the
        assessment of the damages, costs and expenses thereof upon
        the property benefited, and the construction of sewers and
        payment of the damages, costs and expenses thereof, including
        damages to private property resulting therefrom.

        Section 1.  That all municipal corporations of this
     Commonwealth shall have power, whenever it shall be deemed
     necessary in the laying out, opening, widening, extending,
     grading or changing grade 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 changing of water courses or vacation of streets or alleys,
     to take, use, occupy or injure private lands, property or
     material, and in case the compensation for the damages or the
     benefits accruing therefrom have not been agreed upon, any court
     of common pleas of the proper county, or any law judge thereof
     in vacation, on application thereto by petition by said
     municipal corporation or any person interested, shall appoint
     three discreet and disinterested freeholders as viewers, and
     appoint a time not less than twenty nor more than thirty days
     thereafter when said viewers shall meet upon the line of the
     improvement and view the same and the premises affected thereby.
     The said viewers shall give at least ten days' notice of the
     time of their first meeting by publication in one or more
     newspapers of said corporation of the county in which it is
     situate, and where the publication is in more than one
     newspaper, one of said newspapers may be in the German language,
     and by handbills posted upon the premises, or otherwise, as the
     said court shall direct, having regard to the circumstances of
     the case.
        (1 amended June 12, 1893, P.L.459, No.329)
        Section 2.  The said viewers having been duly sworn or
     affirmed faithfully, justly and impartially to decide, and true
     report to make concerning all matters and things to be submitted
     to them, and in relation to which they are authorized to inquire
     in pursuance of the provisions of this act, and having viewed
     the premises or examined the property, shall hear all parties
     interested and their witnesses, and shall estimate and determine
     the damages for property taken, injured or destroyed, to whom
     the same is payable; and, having so estimated and determined the
     damages, together with the benefits as hereinafter mentioned,
     they shall prepare a schedule thereof, and give notice to all
     parties to whom damages are allowed, or upon whom assessments
     for benefits are made, of a time, not less than ten days
     thereafter, and of a place where said viewers will meet and
     exhibit said schedule and hear all exceptions thereto and
     evidence. Notice of the time and place of said meeting shall be
     given, in the manner provided by law for the service of a
     summons in a personal action, upon all parties allowed damages
     or assessed benefits, as shown by said schedule, if the said
     parties can be found in the municipality, or upon an adult
     person residing upon the property affected by the assessment in
     case the owner or reputed owner cannot be found, and to all
     others by publication in the newspaper or newspapers in which
     the first notices of said view were published. When no service
     is made upon the owner, reputed owner or upon an adult person
     residing upon the property affected, said notice, where
     publication thereof has also been made, shall be deemed to have
     been properly served if tacked or conspicuously posted on the
     premises. Councils, by ordinance, may provide by whom the notice
     provided by this act shall be posted, given and served, and fix
     the compensation for said service. After making whatever changes
     are deemed necessary, the said viewers shall make report to the
     court, showing the damages and benefits allowed and assessed in
     each case, and file therewith a plan, showing the improvement,
     the properties taken, injured or destroyed, and the properties
     benefited thereby. When said report is filed, notice thereof
     shall be given by publication once in the newspaper or
     newspapers publishing the notice provided for in section one of
     this act. Said notice shall state the date of filing of the
     report, and shall contain a schedule of the damages and benefits
     as shown therein; and shall further state that unless exceptions
     thereto be filed within thirty days from the date of filing, the
     said report will be confirmed absolutely.
        (2 amended Apr. 2, 1903, P.L.124, No.91)
        Section 3.  The payment of damages sustained by the making of
     the improvements aforesaid, or by the vacation of any public
     highway, may be made, either in whole or in part, by the
     corporation, or in whole or in part by assessments upon the
     property benefited by such improvements, as said viewers may
     determine and the court approve, and in the latter case the
     viewers appointed to assess damages, having first estimated and
     determined the same apart from benefits, shall also assess the
     said damages, or so much thereof as they may deem just and
     reasonable, upon the properties peculiarly benefited by the
     improvement, including in the said assessment all properties for
     which damages have been allowed, if, in their judgment, such
     properties will be benefited thereby, and shall report the same
     to the said court. The total assessments for benefits shall not
     exceed the total damages awarded or agreed upon.
        Section 4.  The viewers provided for in the foregoing
     sections may be appointed before or at any time after the entry,
     taking, appropriation or injury of any property or materials for
     constructing said improvements. The costs of the viewers, and
     all court costs incurred in the proceedings aforesaid, shall be
     defrayed by the said municipal corporation, and each of the said
     viewers shall be entitled to a sum not exceeding five dollars
     per day for every day necessarily employed in performance of the
     duties herein prescribed.
        Section 5.  In all cases where the parties have not agreed
     upon the amount of damages claimed, or where, by reason of the
     absence or legal incapacity of the owner or owners, no such
     agreement can be made for the lands, property or materials to be
     taken, occupied or injured, the municipal corporation may tender
     sufficient security to the party claiming or entitled to any
     damages, or to the attorney or agent of any person absent, or to
     the agent or other officers of a corporation, or to the guardian
     or committee of any one under legal incapacity, the condition of
     which shall be that the said municipal corporation shall pay or
     cause to be paid, such amount of damages as the party shall be
     entitled to receive, after the same shall have been agreed upon
     by the parties, or assessed in the manner provided for by this
     act. In case the party or parties claiming damages refuse or do
     not accept the security so tendered, the said municipal
     corporation shall then give the party, his or their agent,
     attorney, guardian or committee, a written notice of the time
     when the same will be presented for filing in the court, and
     thereafter the said municipal corporation may present said
     security to the court of common pleas of the county where the
     lands or other property are situated, and, if approved, the
     security shall be filed in said court for the benefit of those
     interested, and recovery may be had thereon for the amount of
     damages assessed, if the same be not paid, or cannot be made by
     execution on the judgment in the issue formed to try the
     question, and upon the approval of said security said municipal
     corporation may proceed with the improvement.
        Section 6.  Upon the report of said viewers, or any two of
     them, being filed in said court, any party interested may,
     within thirty days thereafter, file exceptions to the same; and
     the court shall have power to confirm said report, or to modify,
     change or otherwise correct the same, or change the assessments
     made therein, or refer the same back to the same or new viewers,
     with like power as to their report. When said report is first
     filed in court, the prothonotary thereof shall mark the same
     confirmed nisi, and in case no exceptions are filed thereto
     within said thirty days, he shall enter a decree (as of course)
     that said report is confirmed absolutely. The said report, when
     and as finally confirmed, shall be conclusive as to any
     assessments made therein to pay the costs and expenses of any
     sewer, street or other improvement. And within thirty days after
     said report is filed in court, as aforestated, any party whose
     property is taken, injured or destroyed, or who is assessed
     benefits to pay damages for property taken, injured or
     destroyed, may appeal to the court of common pleas, and demand a
     trial by jury, according to the course of the common law. Every
     appellant shall state in the appeal the grounds upon or for
     which the appeal is taken, and the same shall be signed by the
     party or parties taking the appeal, or by his or their agent or
     attorney; and shall be accompanied by an affidavit of the party
     appellant, or of his or their agent or attorney, that the appeal
     is not taken for the purpose of delay, but because the appellant
     firmly believes that injustice has been done. Upon the trial of
     any such appeal in court, the report of the viewers, as finally
     approved, confirmed, modified or changed by the court, shall be
     prima facie evidence of the benefits as therein mentioned. The
     said court of common pleas shall have power to order what
     notices shall be given in connection with any part of said
     proceedings, and make all and such orders as it may deem
     requisite, and may by rule or otherwise, prescribe the form of
     the pleadings.
        (6 amended Apr. 2, 1903, P.L.124, No.91; repealed in part
     June 3, 1971, P.L.118, No.6 and Apr. 28, 1978, P.L.202, No.53)
        Section 7.  In case any such municipal corporation shall
     repeal any ordinance passed, or discontinue any proceeding
     taken, providing for any of the improvements mentioned in the
     preceding sections prior to the entry upon, taking,
     appropriation or injury to, any property or materials, and
     within thirty days after the filing of the report of viewers
     assessing damages and benefits, the said municipality shall not
     thereafter be liable to pay any damages which have been, or
     might have been, assessed, but all costs upon any proceeding had
     thereon shall be paid by said municipal corporation, together
     with any actual damage, loss or injury sustained by reason of
     such proceedings.
        Section 8.  Every municipal corporation shall have power to
     lay out, establish, or re-establish grades of streets and
     alleys, or parts thereof, and to construct bridges, piers, and
     abutments therefor, and sewers and drains in any street or
     alley, or through, or on, or over private property. Every
     municipal corporation shall also have power, upon the petition
     of a majority of property owners in interest and number abutting
     the line of the proposed improvement, to be verified by
     affidavit of one or more parties to said petition (a majority in
     interest of owners of undivided interests in any piece of
     property to be deemed and treated as one person for the purposes
     of petition), to grade, pave, curb, macadamize, and otherwise
     improve any public street or public alley, or part thereof,
     within its corporate limits, or which may be, in whole or in
     part, boundaries thereof. And also including 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 carriageway 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 space, by the spacing
     and constructing of a footwalk, 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. On petition, viewers shall be appointed as provided
     in the first section of this act, who shall assess the costs and
     expenses of the sewer, or grading, paving, curbing,
     macadamizing, foot walks, parking, shade-tree planting, or
     changing, altering, renewing, replanting, pruning, or other
     improvement of each street or alley, or part thereof, within its
     corporate limits, upon the property benefited, according to
     benefits, if sufficient can be found, but, if not, then the
     deficiency, when finally ascertained, shall be paid by the
     municipal corporation, and the proceedings of said viewers, and
     the proceedings on their report, shall be as provided in this
     act for viewers and reports of viewers in cases of property
     taken, injured or destroyed.
        Upon petition, as aforesaid, of a majority of property owners
     in interest and number abutting the line of a proposed temporary
     improvement or paving, the municipal corporation shall have the
     right to make the same, the costs and expenses thereof being
     assessed against the property benefited in the manner heretofore
     provided. Thereafter, the municipal corporation may replace said
     improvement or paving with a permanent improvement or paving in
     the manner provided by law, with the right to have the costs and
     expenses thereof assessed against the property benefited in the
     manner heretofore provided, but only if the costs and expenses
     first assessed shall be allowed as a credit or set-off against
     the costs and expenses assessed for such subsequent permanent
     improvement of paving.
        (8 amended Apr. 29, 1937, P.L.485, No.114)
        Section 9.  Every municipal corporation shall have power to
     open, widen, straighten, or extend streets or alleys, or parts
     thereof, within its limits, and to vacate streets or alleys, or
     parts thereof, upon the petition of a majority in number and
     interest of owners of property abutting on the line of the
     proposed improvements, to be verified by the affidavit of one or
     more parties as in the preceding section; a majority in interest
     of owners of undivided interests in any piece of property to be
     deemed and treated as one person for the purposes of petition.
     Every municipal corporation shall have power, whenever the
     councils or authorities thereof shall deem it necessary, to
     open, widen, straighten, or extend streets or alleys, or parts
     thereof, and to vacate streets or alleys, or parts thereof,
     without any petition of property owners. The widening or
     straightening ordinances shall fix the new line or lines, and
     may require that thereafter no owner or builder shall erect any
     new building or rebuild or alter the front of any building
     already erected without making it conform to the new lines, in
     which case the landowner's right of action shall accrue only
     when the said municipal corporation actually enters on and
     occupies the land within the said lines, or the said building is
     located or relocated to conform to said lines: Provided, The
     ordinance or ordinances authorizing the same shall be adopted
     and enacted by the affirmative vote of three-fourths of the
     members elect composing the councils of such municipality, and
     approved by the mayor, city recorder, or burgess thereof. No
     such ordinance shall be finally adopted and enacted in a less
     period than thirty (30) days from the date of its introduction,
     and in the meantime copies of said ordinance shall be published
     in each of the official newspapers of such municipality, once a
     week for three consecutive weeks, immediately following the
     introduction thereof, and, in case such municipality shall have
     no official newspapers, then in at least one newspaper published
     in the county in which the municipality is situate, once a week
     for three consecutive weeks.
        (9 amended May 17, 1921, P.L.844, No.295)
        Section 10.  The majority in interest and number required for
     petitions to councils shall be fixed as of the date of the
     presentation of said petition. After the passage or approval of
     any ordinance for the opening, widening, straightening,
     extending, grading, paving, macadamizing or otherwise improving
     any street or alley, notice shall, within ten days thereafter,
     be given by hand-bills posted in conspicuous places along the
     line of the proposed improvement, which notice shall state the
     fact of the passage or approval of the ordinance, the date of
     the passage or approval, 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 and denying the fact that said
     petition was so signed, may appeal to any court of common pleas
     of the proper county within sixty days from the passage or
     approval of said ordinance, and any person interested may,
     within sixty days from the passage or approval of said
     ordinance, present a petition to any court of common pleas of
     the proper county setting forth the facts, whereupon the said
     court shall inquire and determine whether said improvement was
     petitioned for by the requisite majority, and if said court
     shall find that it was not so petitioned for, shall quash said
     ordinance, but if said court shall find that it was so
     petitioned for, it shall approve the ordinance. If no appeal
     shall be taken as aforesaid, or if the court on appeal shall
     approve the ordinance, the municipal corporation may proceed
     with the improvement, and thereafter all parties interested
     shall be estopped from denying the fact that said petition was
     signed by the requisite majority of property owners as required
     by this act. All assessments for benefits to pay damages, costs
     and expenses shall bear interest at the expiration of thirty
     days after they shall have been finally ascertained and fixed,
     and shall be payable to the treasurer or other proper officer of
     the municipality.
        Section 11.  The municipal authorities may require sidewalks,
     boardwalks and curbstone to be laid, set and kept in repair, and
     after notice to the owner or owners of property to lay, set or
     repair such walks or stone in front of his, her or their
     property, and his, her or their failure to do so, the said
     municipal authorities may do the necessary work and assess the
     cost thereof upon the property of said owner or owners in front
     or along which said walk or curbstone so laid, set or repaired,
     shall be situate, and file a lien therefor or collect the same
     by action of assumpsit.
        Section 12.  Every municipality shall have a general plan of
     its streets and alleys, parks and playgrounds, including those
     which have been or may be laid out, but not opened; which plan
     shall be filed in the office of the engineer or other proper
     office of the municipality, and all subdivisions of property
     thereafter made shall conform thereto. The location of streets
     or alleys, or parts thereof, or parks or playgrounds, laid out
     and confirmed by authority of councils; shall not afterwards be
     altered without the consent of councils; and no map or plot of
     streets or alleys, or parks or playgrounds, shall be entered or
     recorded in any public office of the county in which said
     municipality is situated until approved by councils. No person
     shall hereafter be entitled to recover any damages for the
     taking for public use of any buildings or improvements of any
     kind which may be placed or constructed upon or within the lines
     of any located street or alley, or park or playground, after the
     same shall have been located or ordained by councils.

        Compiler's Note:  Section 1201(1) of Act 247 of 1968 provided
            that section 12 is repealed insofar as it relates to
            cities of the second class A, incorporated towns and
            townships of the first and second class.