Source:City-must-pay/content
A decree was filed this morning by Judge Stowe enjoining the city of Allegheny from assessing the property owners along Perrysville avenue for the grading and paving of the thoroughfare.
This suit was in the form of a bill in equity entered by the owners of abutting property. It involved the question as to whether Allegheny city or the plaintiffs should pay about $250,000 for the improvement of the street.
The hearing and arguments in the case took place some time ago. W. B. Rodgers, Esq., appeared for the plaintiffs and James Bredin, Esq., and City Solicitor George Elphinstone for the city.
On the matter that appeared at the hearing, Judge Stowe finds the facts to be that the plaintiffs own property having an aggregate frontage of 2,000 feet on the avenue. The avenue was formerly a part of the turnpike road of the Allegheny & Perrysville Plank Road Co., and about 1852 was improved and a plank road constructed thereon, no part of the same being within the limits of the city of Allegheny at the time. No part of the road was ever macadamized, but the company kept in repair and renewed from time to time one plank track, eight feet wide, of oak plank, three inches thick. In 1891 that part of the road which it is proposed to improve, was condemned and became a public highway of the city. In October, 1892, councils passed an ordinance making the width of the street 50 feet, from the head of Federal street to the intersection of Perrysville avenue and Federal lane, and 60 feet from Federal lane to the city line.
In January, 1894, councils passed an ordinance providing for the grading, paving and curbing of the street, and directing the public works committee to receive proposals for the same. Under the ordinance the costs of these improvements is [sic] directed to be collected from the abutting property by a special assessment under the act of 1870. The length of the improvement is 17,746 feet, part of the property being built up, but much of it is rural and used for agricultural purposes.
In addition to the foregoing facts, the court finds that the Perrysville avenue was originally known as the Franklin road, and was laid out under the act of assembly, and ran from the courthouse, in the city of Pittsburg, up what is known as Federal street, in the city of Allegheny, then northward to Le Boeuf, formerly a French fort at French creek, near what is now the town of Franklin.
Judge Stowe, in his conclusions of law, finds that the foot front rule for the assessment and collection of the costs of improving and paving Perrysville avenue, under the ordinance, is entirely illegal and inequitable, and that said ordinance is therefore null and void.
This decision is reached on account of the attempt ot collect by the foot front rule, but the court on another question considered at the request of counsel says:
"We do not hesitate to say that we are of the opinion the improvements of the old road by the Turnpike company in planking, repairing and keeping the same in order as a plank road, as the evidence shows they did before it was taken charge of by the city, will not prevent the city hereafter from improving, grading and paving the same, under the proper legislation, at the cost of the property-holders along the line of the avenue, upon the basis of each being assessed according to the benefits accruing to the property under such improvements. We also think the city has the right to improve the avenue under the act of May 16, 1891."
