The City of Erie appeals from an order of the court below sustaining exceptions to the report of a jury of view, and deciding that the city, and not the abutting properties, was liable for the cost of certain paving work done on Kahkwa Boulevard. The decision is right.
Originally the boulevard was part of a tract of land belonging to a development company, and had been graded, curbed and paved in a substantial and suitable manner at the expense of the abutting owners. After the tract became part of the city, the development company conveyed to the city the bed of the streets, including the boulevard, by a deed which stated that "This conveyance is made to the [city] for the purpose of having said streets accepted, dedicated and used as public streets of the City of Erie." The deed was accepted by the city under the authority of a municipal ordinance.
For more than six years after the boulevard became a public street of the city, no work was done upon the pavement, despite unusually heavy traffic over it, though the city officials knew repairs were needed, and were told how they should be made. The result was that it fell into a serious state of disrepair. Subsequently the city ordered the work done which resulted in the present dispute. *Page 137 As testified to by the city's chief paving inspector, it consisted of taking the "loose material out of the base course," "levelling up with bituminous concrete the portion of the street that had fallen into decay, and covering it with an asphalt top." It is evident from this brief statement, and the court below, from all the evidence, found as a fact, that what the city did was not to construct a new and original pavement, but to repair one that, through her neglect, had "fallen into decay." There was ample evidence to sustain this finding. But, says the city, "repair implies the existence of the thing repaired." Of course it does, but here the existing thing that was repaired was the pavement laid by the developing company on a highway later accepted by the city as a public street, with the resultant duty to keep it in reasonable repair, as in the case of all public streets, and for a failure of which duty the city might become liable in damages to those injured by reason of such neglect.
Who then was liable for the repair? Appellant admits, compelled thereto by Hammett v. Phila., 65 Pa. 146, 156, that "Repairing streets is as much a part of the ordinary duties of the municipality — for the general good — as cleaning, watching and lighting. It would lead to monstrous injustice and inequality should such general expenses be provided for by local assessments." Many other cases hold likewise, and no different conclusion, so far as we are advised, has ever been reached by any Pennsylvania court. Appellant avers, however, that in order to prevent an assessment for the paving done in front of an abutting property, its owner must show that there had been previously laid a suitable original pavement, and that the municipality had recognized it as such. This is so whenever the paving for which the assessment is imposed, is alleged by the property owner to be a second and not an original paving of the street; but no such requirements exist where, as here, the work done was merely the repair of an existing pavement, whether it was an original or other paving; and this is *Page 138 so even though it was not laid by the municipality. Any other determination would compel the manifestly absurd conclusion that a municipality could not, in fact, repair a pavement which had not been accepted by it as such an original pavement as would debar the filing of liens for an entirely new paving of the street.
The order of the court below is affirmed at appellant's cost.