
    Cooper, Appellant, v. Bellevue Borough.
    Road law — Streets—Boroughs—Extension of streets — Two improvements — One proceeding.
    
    Where a street of a borough already graded and curbed throughout, is extended, and the new or extended portion is subsequently graded and curbed, and the borough institutes one proceeding to assess damages and benefits resulting from both improvements, the properties on the old portion of the street and not abutting on the new improvements, cannot be assessed with any portion of the cost of the new improvement.
    Argued May 9, 1912.
    Appeal, No. 176, April T., 1912, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., First T., 1908, No. 598, for debt on case statéd in suit of Leila A. Cooper v. Bellevue Borough.
    Before Rice, P. J., Henderson, Morrison, Head and Porter, JJ.
    Judgment modified.
    Case stated to determine liability for street improvement. Before Frazer, P. J.
    
      Frazer, P. J., filed the following opinion:
    In substance the case stated sets forth that the grade of Miller street (now Roosevelt avenue) was established from Meade street westward to the bridge by ordinance approved May 10,1904; and by another ordinance approved June 9, 1904, the grade of the street was established from Meade street eastward to Ridge avenue, and by ordinance approved September 14, 1904, the grade of the street from the bridge to Ridge avenue was re-established. Prior to the re-establishment of the grade, which was done in response to a petition of property owners in which plaintiff did not join, the council of the borough advertised for bids for the grading and curbing of the street, and by resolution entered into a contract for said work with V. Di Giorno & Company who under their contract graded the street from its western terminus at the bridge to its then eastern terminus at Ridge avenue, the cost of the same when completed being $3,754.30. By an ordinance approved September 29, 1906, the street was extended from Ridge avenue to Riverview avenue, and a grade established on the extension. By ordinance approved October 27, 1906, the grade of the street from Sheridan avenue eastward to Riverview avenue was established at the present grade, to which it was regraded under a contract entered into by the borough with James Greenough. The regrading and resetting of the curb under this contract amounted to the sum of $2,407. The property of the plaintiff abutting upon the street is situated at the southeast corner of Meade street and Roosevelt avenue, with a frontage of 177.3 feet on Roosevelt avenue. Subsequent to the completion of the second improvement above referred to, a board of viewers was appointed by this court, under the Act of March 14, 1907, P. L. 15, and assessed in one proceeding the total cost of the two improvements upon the properties abutting on Roosevelt avenue between the bridge and Riverview avenue, the total length of the frontage on both sides of the street being 3037.43 feet.
    
      If the court is of the opinion that the property of plaintiff under this state of facts is liable only for a pro rata share of the cost of the first improvement then judgment to be entered in favor of defendant and against plaintiff in the sum of $231.70, with interest from March 5, 1908. If of the opinion that the property of plaintiff is liable for pro rata share of the aggregate sum of both improvements then judgment to be entered in favor of defendant and against plaintiff in the sum of $634 55, with interest from March 5,1908. If, however, the court be of opinion that the property of plaintiffs is not liable in any sum whatever judgment to be entered in favor of plaintiff and against defendant for the sum of six and one-fourth cents.
    The questions raised by the case stated were passed upon and determined by Judge Carnahan in considering the exceptions filed to the viewers’ report in the improvement of Roosevelt avenue, at No. 79, Third Term, 1907. Among the questions passed upon in that case was an exception denying that the Act of March 14, P. L. 15, was applicable to this improvement. Judge Carnahan held that cases of this class were within the provisions of the act and dismissed the exceptions.
    We have not been convinced that a different conclusion should now be reached. If the assessment was invalid because of the improvement being made under an original ordinance and an ordinance re-establishing the grade of the street, we think the act made the proceeding valid. The statute is quite comprehensive, and was in our opinion passed for the purpose of enabling municipal corporations to recover from property owners their proper share of the cost of the improvement where the property was especially benefited, as was the case here.
    Being of the opinion that the improvement should be considered as a whole and that plaintiff’s property is liable for a pro rata share of the aggregate sum of both improvements, judgment is entered in favor of defendant and against plaintiff for the sum of $634.55, with interest from March 5; 1908,
    
      
      Error assigned was the judgment of the court.
    
      George II. Quaill, for appellant.
    — The property of appellant did not abut on the line of the second improvement which cost the sum of $2,407, and which was an improvement in part, at least, of a street that did not exist in fact, or on paper, or in municipal contemplation, at the time the first improvement was completed, paid for, accepted by the municipality, used by the traveling public, and the liability of abutting property owners thereon as they then existed fixed therefor: Mórewood Avenue, 159 Pa. 20; Fifty-fourth Street, Pittsburg’s App., 165 Pa. 8; Speer v. Pittsburg, 166 Pa. 86; Orkney Street, 9 Pa. Superior Ct. 604; 194 Pa. 425; William Street, 13 Pa. Superior Ct. 266; Atlantic Avenue, 14 Pa. Superior Ct. 117; Letitia Street, 18 Pa. Superior Ct. 536.
    As to the second improvement shown in the case stated, this court can declare as a matter of law that no such special benefits could accrue to appellant’s property as to authorize the viewers or the court to impose any proportion of the cost thereof on appellant’s property: Allegheny City v. Railroad Co., 138 Pa. 375.
    There was, by this second improvement, no benefit to the appellant peculiar to her, or differing in kind from that obtained by the general public: Speer v. Pittsburg, 166 Pa. 86; William Street, 13 Pa. Superior Ct. 266.
    
      David L. Starr, for appellee.
    — The contention of the plaintiff is that this is a second assessment or an assessment for a regrade, which cannot be sustained: Boyd v. Wilkins-burg Borough, 183 Pa. 198; Steelton Borough v. Booser, 162 Pa. 630; Tarentum Borough v. Moorhead, 26 Pa. Superior Ct. 273; McCormick’s App., 165 Pa. 386.
    All the cases in which an assessment for regrading have been disallowed, are cases where the property was formerly assessed and had paid for its share of the improvement: McCreery v. Allegheny, 25 Pitts. Leg. J. 81; Childs’s App., 179 Pa. 634.
    
      October 14, 1912:
   Opinion by

Rice, P. J.,

The first improvement described in the case stated was the grading of Roosevelt avenue from its western terminus at the bridge to its then eastern terminus at Ridge avenue. As the property of the plaintiff abuts on the fine of the improvement, we are of opinion that it is liable for a pro rata share of the cost of the same (if it benefited to that extent), and, without having before us the entire proceeding instituted under the Act of March 14, 1907,. P. L. 15, we cannot say that the assessment of such share in that proceeding could not be sustained. But as to the second improvement, the case is different. This was the regrading of Roosevelt avenue from Sheridan avenue to River View avenue, the then eastern terminus of the street, and resetting curb on the same from Sheridan avenue to Ridge avenue. This improvement was made two years after the first improvement was completed and paid for by the borough; it was made under a different resolution and a different contract; and it included the part of the street from Ridge avenue to River View avenue which was not part of the street at the time the first improvement was made. The two improvements were not made under one ordinance, as in Tarentum Boro. v. Moorhead, 26 Pa. Superior Ct. 273, and there is no action of council referred to in the case stated which shows that the second improvement was contemplated by council at the time thé first was made. It certainly could not have been contemplated in its entirety, because at that time Roosevelt avenue had not been extended from Ridge avenue to River View avenue. The inevitable conclusion, from all the facts agreed upon, is, that these were two distinct and separate improvements, and were not merely parts of one entire improvement made at different times. The plaintiff’s property is at the corner of Roosevelt avenue and Meade avenue, more than 300 feet west of Sheridan avenue at the western terminus of the second improvement.

In Morewood Avenue, 159 Pa. 20, Justice Green, after an elaborate review of the authorities, announced the conelusion of the court in these clear and explicit terms: “As we have repeatedly decided, the-doctrine of assessment for benefits, to pay for public improvements, can only be defended upon the ground that the benefits are local and essentially peculiar to the very property assessed, and then it can only be done once. This can only be the case when the property assessed abuts, directly upon the fine of the improvement. Having their own burthens to bear in this respect, the owners cannot be subjected to the discharge of similar burthens upon other properties, whether situate on the same street or in the same neighborhood.” In Fifty-fourth Street, Pittsburg’s App., 165 Pa. 8, this ruling was quoted with emphatic approval and applied to the relief of property which, though situated on the street, did not abut directly on the portion of the street graded, paved and curbed. So, in Speer v. Pitts-burg, 166 Pa. 86, it was held, under the act of May 16,1891, P. L. 75, that the words, “majority in interest and number of owners of property abutting on the line of the proposed improvement,” mean the majority of owners on the portion of the street to be actually improved, and not the majority of the owners on the whole of the street. The rule as stated in Morewood Avenue was reiterated in Orkney Street, 9 Pa. Superior Ct. 604, and applied to the assessment for benefits resulting from opening a street theretofore terminating as a cul-de-sac, upon properties not abutting upon the line of the improvement as projected, and which was the subject of the improvement. That case was affirmed by the Supreme Court on appeal: 194 Pa. 425. We said in that case: “It is vain to argue that Morewood Avenue can only be regarded as a binding authority where the proceedings are under the act of 1891. It not only construes that act, but it also lays down a general rule, based upon a consideration of the nature of local assessments for public improvements and of the limitations of the power of the legislature in that regard, which, although the act were as broad in terms as the Act of April 1, 1864, P. L. 206, would defeat any assessment of nonabutting property for paving or sewering, or other improvements of the same kind.” The principle has been applied in numerous notable sewer cases (see Grafius’ Run, 31 Pa. Superior Ct. 638, and cases cited in Judge Head’s opinion), and in numerous street improvement cases, and we know of no authoritative decision in which it has been so modified or qualified as to cease to be applicable to the precise case we have before us. If this had been a separate and distinct proceeding to assess the damages and benefits resulting from the second improvement, these authorities would have prevented an assessment for benefits upon the plaintiff’s property, because that property did not abut on the fine of the improvement. The rule is no less applicable on the ground that the borough attempted to assess the damages and benefits resulting from both improvements in one proceeding.

The judgment is modified by reducing the amount from $634.55 to $231.70, with interest from March 5,1908, and, as thus modified, is affirmed.  