Incorporation of Village of Narberth

Opinion of the court by Swartz, P. J., April 2, 1894.

The territory to be incorporated is situate on the northwest side of the Pennsylvania railroad. According to the testimony it embraces an area of about five hundred acres. The northwestern boundary is formed by the middle line of the Philadelphia, Bala and Bryn Mawr turnpike road. The centre line of the road-bed of the Pennsylvania railroad forms the southern boundary. The centre line of Merion avenue and Bowman avenue forms the eastern boundary, and the centre line of Wynnewood avenue bounds the proposed borough on the west. The distance along the turnpike is sixty-nine hundred and fourteen feet, while the distance along the railroad is forty-two hundred and fifty-three feet. The greater portion of the territory embraced within these limits is cut up into building lots. Streets are laid out and many of them are opened. Three of the principal avenues cross the railroad. There is no grade crossing at any one of the intersections. That part of the territory immediately north of the railroad, sometimes called Narberth Park, contains forty-five houses. Immediately south of the railroad there is a plot of ground, not included in the territory to be incorporated, and upon it are erected some twenty houses. This tract is also divided into lots, and traversed by streets opened to travel. The improvements on these twenty acres are in advance of those on the north side of the railroad. The streets are better, the drainage is good, and there is a fine water supply. A school-house was lately erected in the limits of the proposed borough at a cost of fifteen thousand dollars. But fifteen of the pupils attending this school are residents within the proposed incorporation. A Presbyterian and a Methodist church are located north of the railroad within the proposed limits. The Baptist church is on the south side of the railroad near the depot. The post-office and railroad station are on the north side of the railway, within the proposed limits.

Among the exceptants to the incorporation are the Pennsylvania Railroad Company and stockholders of the turnpike company. We fail to see any good reason for excluding one-half of the railroad bed from the proposed limits. One of the reasons given for the incorporation is the securing of proper police regulations and supervision at the railroad. Police protection will be hampered if one-half of the roadway is within the jurisdiction of the borough. The turnpike road forming one of the boundaries of the proposed borough should be either wholly within or wholly without the limits. If toll-gates are to be excluded under the act of Assembly, there should be no uncertainty about it.

The avenues forming the eastern and western boundaries should be within the limits. How can the borough authorities exercise proper care over these avenues when one-half of the road-bed is not in their jurisdiction? The grading of a street is of great importance to those erecting houses in a borough. The petitioners lay much stress upon the bad condition of the streets. How can they correct these defects if but one-half of the street is in their control?

We can not correct these errors. We must approve or set aside the report of the grand jury. We may reduce the limits by excluding farm lands, but we can not alter the proposed lines for other reasons.

In our opinion, the defects just enumerated are serious; and yet if there was no other objection to the report, we should hesitate before we rejected it. But there is a more serious difficulty in the path of the petitioners. There is no jurisdiction under the law to incorporate part of a town or village; and yet this is just what we are asked to do under the present application. The built-up portion of the ground south of the railroad is just as much a part of the town as the territory we are asked to incorporate. The two parts have a common railroad depot and post-office. The churches belong to one part as much as to the other, although not on the same side of the railroad. Three of the streets at least are continued across the railroad, and they do not assume any new names, so far as we are informed, after they cross the railway; and there is no reason why they should do so. The railroad does not form any natural division or boundary between the two parts; it does not make two towns out of one. We might as well say that Haverford avenue divided the town into two distinct villages. A school-house costing fifteen thousand dollars with but fifteen pupils to attend, sounds like a waste of money. A village is “a collection of houses collocated after a regular plan in regard to streets and lanes without intervening farm land, but with a convenient curtilage to each”: Borough of West Philadelphia, 5 W. & S., 281. There is no intervening farm land in the case before us, and the definition embraces the collection of houses south of the railroad just as much as those on the north side. No visitor to the town would think of including the houses along the turnpike as part of the village if he is to exclude the houses immediately south of the railroad. “Narberth,” according to most of the witnesses, is applied to the territory south of the railroad as well as to that north of the roadway. The “Narberth” Baptist church is south of the railroad, while the “Narberth” bank is on the other side of the road. But even if the sections on opposite sides of the railroad are known by different names, this circumstance could not make two villages where in fact but one exists.

The act of April 1, 1834, provides for the incorporation of any town or village, not for part of any town or village. Our jurisdiction is statutory, and the act must be strictly followed. “The only words descriptive of what may be incorporated are any town or village within their respective jurisdiction”: Borough of Quakertown, 3 Gr., 203. “It is a town or village that may be incorporated * * a village proper with its proper territory”: Borough of Little Meadows, 35 Pa., 335.

The act of Assembly does not contemplate the formation of several boroughs out of the same town. A majority of the resident freeholders of the town or village must ask for the incorporation: Sec. 2, Act of April 1, 1834. If the construction of the applicants is to prevail, then, although a majority of the resident freeholders may oppose incorporation, the petitioners may carve out a section of the town in such manner as to defeat one of the provisions of the act, to wit, that the majority sentiment of the town shall control. By such action an undue advantage would be taken of the minority residents within the carved-out district and opposed to incorporation.

It may be that there are circumstances under which “a collection of houses collocated after a regular plan in regard to streets and lanes” constitute two distinct towns or villages, but the facts before us in the present application do not present any such circumstances.

The incorporation of Narberth may be of great advantage to the parties interested in the progress and welfare of the town; but we are helpless so long as a majority of the resident freeholders is of a different opinion. The act of Assembly is explicit: “When application is made to the court by the inhabitants of any town or village for the privileges conferred by this act, it shall be in writing, and shall be signed by a majority of the freeholders residing within the limits of the same.” The word “same” can not be made to refer to any words other than “town or village.”

And now, April 2, 1894, for the reasons given in this opinion the findings of the grand jury are not approved and the application of the petitioners is refused and dismissed.

Incorporation of Village of Narberth.

Opinion of the court by Swartz, P. J., December 3, 1894.

For the reasons given when this matter was before us, on April 2, 1894, we are still of opinion that the collection of houses north of the railroad and south of the railroad constitute one village.

The exceptants allege that the proposed incorporation includes non-appurtenant farm land; that the limits are unnecessarily large, extending south, east and west of the village proper; that certain portions of the territory will be subjected to increased taxation without any corresponding benefit; that the movement is in the interest of speculating lot-owners; that the expensive school-house within the limits will necessitate the heavy bonding of exceptants' property; that the improvements south of the railroad are in advance of those north of the railroad; that the village south of the railroad will be unjustly taxed to improve the property on the north side.

It will be observed that the exceptions do not question the regularity of the proceedings, but attack the merits of the application for incorporation. The grand jurors met the witnesses face to face upon the questions now raised by the exceptants, and we should confirm their actions unless we can offer some substantial reason for withholding our approval.

The reasons given by the petitioners satisfy us that they are in need of a municipal government, such as an incorporation into a borough will afford them. Their streets need supervision; the drainage needs attention; and their nearness to a large city and the racetracks in the vicinity call for proper police protection. The majority of the citizens are anxious to improve their surroundings. Their voluntary association is no longer sufficient to meet their necessities. Nor is it just that these voluntary contributions should inure to the benefit of those who decline to contribute. Their complaint that the road taxes levied within the limits of the proposed borough are expended within the township without giving a corresponding benefit to the citizens of the village is fully made out and sustained. Nor is it possible for the supervisors of the township to fully meet their wants. Supervisors do not direct the construction of sidewalks or attempt to fix a town system of street grades. Where a majority of the village is ready to make much needed improvements to give themselves comfortable homes, the project should be encouraged. The township seems to recognize the justice of the petitioners’ claims, for it does not appear as an exceptant to the proceedings.

We are aware that the proposed incorporation imposes to a certain extent a hardship upon some of the land-owners south of the railroad. They do not need the street improvements required north of the railroad, because they have them already. But this applies only to about half of the property south of the railroad. Their grievance is that they will be taxed to improve the properties of their neighbors. This difficulty is not an unusual one. Few tax laws in their application work out exact justice and equality in all cases. But an improvement in the village necessarily to some extent inures to the benefit of all the property owners. Good streets are more valuable if the approaches to them are in like good condition. The inhabitants of a town have at times occasion to use other streets than those in the immediate vicinity of their houses. The objection now made could be used with equal force against the township. Why should these exceptants pay road taxes to the township when they are receiving no corresponding benefits? The supervisors spend no money upon the streets upon which their houses front. If their money, raised by taxation, is spent upon the streets of the town, are not their properties benefited as much as if it was paid into the township?

The sewage system and water plant are individual enterprises. The owners of these improvements do not lose their property by the incorporation.

The only land within the proposed limits used exclusively for farming purposes is the Thomas tract of sixty-one and one-half acres. The Wood tract is to the east of this farm, but the greater portion is located on the south side of the railroad. The portion south of the railroad is in part divided into suitable lots for building purposes; one of the lots was sold, the others are in the market for sale. The southern portion of this tract adjoins the built-up parts of the village. The owners objected to the incorporation before the grand jury; but by a paper now on file they say, “We have not and do not care to file exceptions to the report of the grand jury.” If we exclude the Thomas tract, we must necessarily exclude that part of the Wood tract located east of the Thomas tract. The latter is exclusively used for the purpose of farming, and we can not say that “it properly belongs to the town or village.” There is much unimproved property within the proposed limits, many lots are for sale for building purposes, and the time is perhaps not near at hand when this farm will be required for the further extension of the town. The value of the land, it is true, is far beyond the price of farm land; but we are well aware that this can be said of all the land in the neighborhood, even for several miles around. No doubt it has a value of two thousand dollars per acre; but this value is not due to its proximity to the village. We must exclude this farm, as well as the Wood tract to the east of it and north of the railroad, and the Hunter tract north and east of the Thomas tract.

The last course of the proposed limits along Montgomery avenue should be south fifty-seven degrees east to east side of Merion road, thence by said east side of said Merion road to the northeast side of Narberth avenue, thence along said side of said avenue to the north boundary of the lands of the Pennsylvania railroad, thence along said railroad company’s land to the east side of Rockland avenue, thence by said side of said avenue and the several courses and distances returned by the grand jury to the place of beginning. The measurements and courses should be taken, so that a proper decree may be drawn fixing accurately the limits of the proposed borough. When these data are furnished we will approve the report of the grand jury modified as hereby indicated.