The opinion of the court was delivered, by
Williams, J.It is clear that the city has no' authority to open a street without paying or giving security for the payment of the damages that may be occasioned to the owners of the land over which it is laid out: Sower v. The City of Philadelphia, 11 Casey 231. And it is equally clear that the corporation has no power to construct a culvert or sewer in a street until it has been legally and properly opened. Though laid out, it is hot a street within the meaning of the acts authorizing the construction of sewers in the streets of the city at the expense of the owners of the property fronting thereon, until it has been duly opened by authority of law. It follows that the city had no authority to open Ontario street through the defendant’s ground, and to construct the culvert for which the claims in these cases were filed, while proceedings ivere pending in the Court of Quarter Sessions for the assessment of the damages sustained by the defendants, without first giving security for the payment thereof. The affidavit of defence substantially alleges that the opening of the street will cut the defendants’ lots in a manner highly damaging to the value thereof; that proceedings to assess the damages occasioned the defendants thereby, are still pending and undetermined in the Court of Quarter Sessions; that the defendants served written notice upon the Chief Commissioner of the Highway Department of the pendency of said proceedings, and that any contract for building any culvert on the line of Ontario street before the confirmation of the report of the jury, would be, as they were advised, illegal, and that any attempt to enforce any claim or lien would be resisted; yet in face of said notice, and after receiving the same, and while the report of the jury was then and is still depending and undetermined, the contract was awarded to the contractor for whose use these claims are marked, without any security having been entered or given to secure to the defendants their damages for taking said land.
If the facts be as alleged in the affidavit, it is plain that the city had no authority to construct the culvert and to charge any part of the cost thereof on the defendants’.property; and the District Court erred in entering .judgments for the plaintiffs in these cases for want of a sufficient affidavit of defence.
*47The other grounds of defence set up in the affidavit need not be specifically noticed. It is enough to say that there is nothing in any of them that would constitute a defence to the claims sought to be recovered.
Judgment reversed, and a procedendo awarded in each case.