or

the premises to which the notice refers, (r) if such owner be a resident of the borough. If the owner is not a resident, then the notice may be served upon the agent or tenant of the owner, upon the occupant of such premises. If the owner have no agent or tenant or there be no occupier of such premises, then service shall be by printed or written notice posted upon the premises.

II.

(b) LAYING OUT SIDEWALKS, Gutters, and DRAINS ALONG THE

SIDES OF TURNPIKE ROADS.

Section 8. Boroughs may ordain and lay out sidewalks, gutters, and drains upon land abutting the sides of turnpike roads, and may fix the width thereof. (s)

Section 9. Whenever any borough shall open, lay out, and ordain sidewalks, gutters, and drains, upon lands abutting along the sides of turnpike roads, the borough may apply, by petition,

evidence shows that it has been used as such for some time prior to the borough's incorporation, and was maintained by the borough though never dedicated to public use by the owner of the land or formally accepted by the borough. Canton Borough v. Williams, 67 Pa. Super. Ct. 239. The rights to the public in such a street are founded only upon prescription and are confined to the limits established by the public use, and there is no presumption that the street is of uniform width or that it is straight. Canton Borough v. Williams, 67 Pa. Super. Ct. 239. Assessments for the construction and maintenance of sidewalks involve an exercise of the police power and not of the taxing power, and it is therefore immaterial whether the property is rural or urban, and the municipality is not required to establish the fact that the abutting property was peculiarly benefited by the improvement; neither can the owner claim that the property was farm land and not properly included within the borough limits. Canton Borough v. Williams, 67 Pa. Super. Ct. 239.

(r) A notice to curb and pave sidewalks in a borough, served before the sidewalk is brought from the natural to the established grade, is not sufficient to sustain a lien for curbing and paving after the borough does the grading as, in order to charge the property owner, the notice must be served after the borough brings the sidewalk to grade. Lansdowne Borough v. Burdsall, 14 Del. 325.

(s) The Act of May 22, 1883, as amended by the Act of May 24, 1901, P. L. 299, I Purd. Dig. (13th Ed.) 493 §88, gave the borough no power to order the paving of foot walks on a turnpike, its terms being limited to lands abutting. Milesburg Borough v. Green, 22 W. N. C. 180, 14 Atl. 256, 12 Cent. 474, 10 Sadler 372. Under the Act of June 6, 1893, P. L. 329, 4 Purd. Dig. (13th Ed.) 4945 §31, a turnpike company had a right to locate its gate and charge tolls within a city. Conestoga & B. Sv. Turnpike v. Lancaster, 151 Pa. 543, 31 W. N. C. 146, reversing 9 Lanc. L. Rev. 233.

to the court of common pleas, setting forth the facts, and describing the locality of such sidewalks, gutters, and drains, and praying the court to appoint three viewers from the county board of viewers.

Section 10. The viewers shall view the premises described in the petition, and, having regard to the advantages and disadvantages caused to the property along the line of such improvement, shall allow to all persons injured thereby such damages as they shall have sustained over and above all advantages, and shall make all assessments for contribution upon such property as shall be benefited.

II.

Section 11. The viewers shall report to the next session of the court, describing the properties upon which assessments have been made, specifically stating whether for contribution or for damages, with the amounts respectively, and the court may at any subsequent session, on the hearing of such parties as choose to contest the same, modify and confirm the report, which confirmation shall be final. The borough may collect such assessments for contribution by municipal claim or by action of assumpsit.

(a) POWER TO LAY OUT, AND ASSESS ACCORDING TO BENEFITS.

The provisions of the Borough Code (t), relating to Sewers, as amended by the Act of July 6, 1917, P. L. 704, are as follows:

Section I. Boroughs may lay out and ordain such common sewers and drains, as may be necessary, in any street or alley, or through or over private property. (u)

(t) Chapter VI, Article XII, of the Act of May 14, 1915, P. L. 312, as amended by the Act of July 6, 1917, P. L. 704. As to Sewers prior to the Code, and decisions thereon, see 1 Purd. Dig. (13th Ed.) 493, §§86, 88; 501, §137; 525, §289-296. See also Vale's Dig. Vol. I, cols. 2663-1669; Vol. XI, cols. 1061-1065; Vol. XIII, cols. 846-850.

See also 5 Purd. Dig. p. 5361, note (a) same pages and sections.

(u) The term "otherwise improve" contained in the Act of May 12, 1911, P. L. 288, was held to confer the right to lay a sewer but not under a grading, paving and curbing ordinance without mention of the sewer. Barrett v. Porter, 62 P. L. J. 429, 6 Munici. L. Rep. 81. Under a general ordinance for grading and paving a borough street, improved under that act, storm sewers, manholes and catch basins for the drainage of surface water could not be constructed. Ibid. In Mauch Chunk v. McGee, 81 Pa. 433, 3 W. N. C. 33, the power to enter upon lands, under the provisions of the Act

Section 2. On petition viewers shall be appointed as provided of April 3, 1851, P. L. 320, §2, Art. 8, for the purpose constructing sewers was considered. In Fisher v. Harrisburg, 2 Grant 291, it was held that even without express legislative authority, a borough might build sewers, but where no special necessity is shown, such construction will be enjoined McCausland v. Greensburg Borough, 21 P. L. J. 133, and in no case can a sewer be constructed without an ordinance authorizing the contract. Riebe v. Lansford Borough, 5 Dist. 555; Riebe v. Walton, 18 Pa. C. C. 289. The Act of May 22, 1883, P. L. 39, 1 Purd. Dig. (13th Ed.) 203, does not grant any power to condemn private property for the construction of drains and sewers except upon the lines of turnpike roads. Strohl v. Ephrata Borough, 178 Pa. 50, 13 Lanc. L. Rev. 393, 39 W. N. C. 154, reversing 13 Lanc. L. Rev. 1. There must be express authority to enter upon private property for the building of a sewer or drain, and the Act of May 22, 1883, P. L. 39, only gave such authority where property abutted on a turnpike, but the Act of May 16, 1891, P. L. 75, gave the right in all cases after condemnation and assessment of damages. Strohl v. Ephrata Borough, 178 Pa. 50; 38 W. N. C. 154; 13 Lanc. L. Rev. 393, reversing 13 Lanc. L. Rev. 1. See also Jeannette Borough v. Eschallier, 7 Dist. 268, 45 P. L. J. 383; as to building over stream running through private property, and Hays v. South Easton Borough, 10 Pa. Super. Ct. 390, as to the taking of a private sewer and the measure of damages. A borough may grant a citizen the right to lay a drain pipe in a street for the purpose of drainage as the borough's power to construct a sewer extends thereto. Wood v. McGrath, 150 Pa. 451, 40 L. I. 63, 24 Atl. 682; Smith v. Simmons, 103 Pa. 32, 40 L. I. 334, 31 P. L. J. 406, 13 W. N. C. 242; Susquehanna Depot Borough v. Simmons, 112 Pa. 384, 17 W. N. C. 362. Where the construction of a sewer is faulty or negligent the borough will be liable for damages Huddleston v. West Bellevue Borough, 111 Pa. 110, 23 W. N. C. 240, 36 P. L. J. 297, 46 L. I. 230, 16 Atl. 764, 17 W. N. C. 344, and so where a borough permits a sewer to become wholly or partially obstructed so as to overflow private property Haus v. Bethlehem Borough, 134 Pa. 12, 26 W. N. C. 348; Bohan v. Avoca Borough, 154 Pa. 404; 32 W. N. C. 212, but a borough is not bound to furnish a system which will prevent the flow of surface water upon property below the grade of a street. Lafferty v. Girardville Borough, 1 Mona. 513, 17 Atl. 12; Buchert v. Boyertown Borough, 1 Mona. 577, 17 Atl. 190; Costello v. Conshohocken Borough, 8 Pa. C. C. 639, 6 Montg. 103. Where the natural course of water collecting on a street is changed by the digging of a ditch, where it caused it to flow upon the land of a private owner, the borough is liable. Weir v. Plymouth Borough, 148 Pa. 566. Where it is sought to render a borough liable for backing water into an alley and flooding a cellar, the borough may show that the acreage drained was lessened by the grading of the street, and the flow of water was less than the original flow. Frederick v. Lansdale Borough, 156 Pa. 613. A borough is not responsible for an error of judgment in constructing a sewer inadequate for the purpose contemplated as it exercises a judicial discretion. Bealafield v. Verona Borough, 188 Pa. 627, following Fair v. Philadelphia, 88 Pa. 309, 6 W. N. C. 534. See also Pressman v. Dickson City Borough, 13 Pa. Super. Ct. 236.