Source:Vacation-validity/content
Legal action to have declared void ordinances approved by councils vacating portions of Valley and Forty-ninth streets, was begun yesterday by Malachy O'Donnell, a property owner. He asks for a preliminary injunction, later to be made perpetual, restraining the H. K. Porter Company and the McConway–Torley Company from closing or obstructing either of the streets.
The suit is against the city of Pittsburgh, City Treasurer Adolph Edlis, the H. K. Porter Company, the McConway–Torley Company and George W. McCandless, auditor of the latter company.
O'Donnell owns property at Harrison and Forty-ninth streets. The lot is 50 feet wide and runs back 100 feet along Forty-ninth street to Plum alley.
The same reasons are urged by the plaintiff against the validity of both ordinances. The principal objections in each case are that the ordinance contains more than one subject, that the subject matter of the ordinance is not clearly expressed in the title; that the city has no statutory or inherent authority to make the validity of an ordinance depend upon the payment of a sum of money by a private person to the city treasurer for its use; that the ordinance impairs the obligation of contract so far as it attempts to vacate the southerly 20 feet of Forty-ninth street, the same having been dedicated by the owner thereof as a public street forever.
Statements Are Questioned.
It is asserted in the bill that the ordinance vacating Forty-ninth street is based upon an alleged petition of a majority of the property owners in interest and number, abutting on Forty-ninth street; that some statements in the petition are false, and that the passage of the ordinance for the vacation was a fraud upon the city of Pittsburgh and its citizens. It avers that neither the McConway and Torley Company nor George W. McCandless, who made affadavit [sic] to the petition, were owners of property fronting or abutting on the street between the points mentioned therein, on May 14, the date of the petition, and that the affidavit of McCandless that he was owner was false.
The city has built and maintains at great expense, it is asserted, a sewer beneath Forty-ninth street and across Valley street to the Allegheny river, and this sewer is absolutely necessary as a means to drainage for the properties in that section. It is also alleged that there is no "Plan of the Borough of Lawrenceville," as stated in the ordinance, and that for this reason, among others, the bills are faulty.
Claims Dedication Perpetual.
O'Donnell claims his lot is in the plan laid out by George A. Bayard and was conveyed with a grant from Bayard, of May 17, 1852, which dedicates the streets in the plan to be enjoyed as streets and alleys forever.
The bill seeks to restrain the McConway and Torley Company from recording a copy of the ordinance vacating that portion of Valley street; that Adolph Edlis be restrained from receiving from the defendant companies, or any other property owners on Valley or Forty-ninth streets, any moneys authorized by the ordinances; that the defendant companies be restrained from interfering with the sewers under these streets or from building over or around the sewer, or making any excavation near the sewer upon these streets.
The ordinances provided that the vacations should not become effective until the companies benefited should pay $2,500 into the city treasury for each of the streets.
