6 Pa. Commw. 135 | Pa. Commw. Ct. | 1972
Opinion by
The Port Authority of Allegheny County (Authority) here sought judgment in mandamus compelling the mayor of the City of Pittsburgh to execute deeds conveying to the Authority certain premises in which the city has an interest. The premises are (1) a property included between parallel planes, each 33 feet wide, located respectively 826.08 and 854.25 feet above sea level, being an unused railway tunnel, and (2) a parcel adjacent to the unused railway tunnel, in the form of a parallelogram, containing 1358 square feet and lying between the tunnel and the tracks of the Penn Central Railroad. The deed of the first described property would convey “[a] 11 of the interest of the City of Pittsburgh only” in the unused tunnel property. The deed for the second described property would grant a perpetual easement for the purpose of the erection by the Authority of an aerial structure for a rapid transit system. The parties agree that the city’s title to the tunnel property was acquired at sheriff’s sales, presumably upon municipal claims, and at treasurer’s sales for delinquent taxes due the city and allegedly the Pittsburgh School District and the County of Allegheny. The small parcel at the tunnel entrance is part of a 52 acre tract conveyed to the city by a railroad company in 1959, subject to a covenant by the city that the tract should be used only as a public park and further subject to a right of reentry by the railroad company and reversion of title upon breach of the covenant.
The deeds were presented to the mayor for execution by him pursuant to ordinances of City Council directing such execution by him and the Director of
The defendant mayor refused to execute the deeds and asserted in Ms Answer and New Matter the following interrelated reasons why he should not be compelled to do so by the judiciary: (1) that the city is trustee for the school district and Allegheny County, having obtained title at treasurer’s or sheriff’s sales for delinquent taxes or municipal claims due them as well as the city, and that the city may not convey the interests of others, and (2) that he has power to refuse to execute such assertedly invalid deeds.
As noted, the plaintiff filed affidavits, but no depositions or interrogatories or other evidential things were made a part of the record. However, it is represented to us by the plaintiff without contradiction by the defendant, that, after the hearing and before the court below entered its judgment, there was provided to it a copy of an executed quitclaim deed conveying Allegheny County’s interest in the tunnel to the Authority and a copy of a resolution of the school district releasing its interest, if any, in the same property to the Authority, with deed to follow.
The court below entered judgment for the defendant upon three general considerations, two of which were not raised by the pleadings. It held that the mayor should not be required to execute the deed for the tunnel because the city is trustee for the school district and the county, that as such the city could not divest the interest of those entities, and that in any case it was required to obtain court approval for a conveyance of real property acquired at sheriff’s or tax sales. It further held that the city owns the 1358 square feet property for park purposes only and has no power to convey it for any other purpose and that an attempt to do so will cause an immediate, “automatic” reverter of the whole 52 acre park property to the grantor’s successor, the Penn Central Transporta
First, the tunnel deed on its face purports to convey only the interest of the city. The city is empowered by Section 2, cl. III of Art. XIX of the Act of March 7, 1901, 53 P.S. §23102, to sell any real property owned by it (not dedicated to and used for public purposes)
To summarize: The deed in question conveys only the interest of the city; even if it purported to convey the interest of all taxing bodies having claims it would be valid, at least with the agreement, here existent, of such other taxing bodies, and in such case no court proceedings would be required unless a discharge of encumbrances were desired; and in any case, there is specific statutory authority for a transfer of real property to the plaintiff by the city, and for that matter the school district and county.
The court below held that the mayor should not be compelled to execute a deed for the 1358 square foot parcel adjoining the Penn Central Railroad tracks because, as we are able to understand it, the city held a fee simple defeasible which somehow inhibited its power to convey. The court wrote: “It is clear that all the city owns is a title in the described property limited in such a manner that the city may only use the property for park purposes and no other. This is the clear intent of the parties as expressed in the deed of conveyance as well as the legal import of the words contained in the conveyance. The city itself could not
Again summarizing: the title of the city to the 52 acre park property is a fee simple defeasible upon condition subsequent which can be conveyed without forfeiture; forfeiture in any event could occur only by further action of the grantor or its successors; conditions subsequent and forfeitures sought thereby are not favored; and on the facts here, forfeiture, even if sought, is not a realistic possibility.
Finally, the court found the proposed deed of easement for the 1358 square feet parcel defective and therefore “invalid” because it believed that the description does not “close.” In fact the description is perfectly adequate and it does close, assuming either to be a reason why a conveyance should be invalid. The only conceivable reason for the court’s finding in this respect, is that one of the lines, rather than being described by degrees, minutes and seconds, is described as “east ... on the Penn Central Bailroad Company property line.” The fact that the actual direction of this line might better have been described as southeast in no way impairs the adequacy of the description. A call for ad joiners takes precedence over metes and bounds and indeed a description referring only to ad-joiners is wholly adequate. Miller v. Cramer, 190 Pa. 315, 42 A. 690 (1899) ; Myer v. Curry, 291 Pa. 145, 139 A. 731 (1927); McGowan v. Bailey, 155 Pa. 256, 25 A. 648 (1893); Over v. Lindsay, 255 Pa. 283, 99 A. 805 (1917).
We have dealt with all of the court’s reasons for its entry of judgment for the defendant. The defendant has urged upon us the further defense that public streets are here sought to be conveyed by the city and that this it may not do. We assume that the refer
There is the suggestion here that the mayor may have some general discretion in the matter of the execution of deeds directed by ordinance of council. Obviously the conveyance of property of the city is a legislative act. Just as obviously the execution of deeds pursuant to duly enacted legislation is, unless there is statutory provision to the contrary, purely ministerial. 10 McQuillin, Municipal Corporations §28.44 (b) (3rd Ed. 1966). To hold otherwise would confer upon the mayor, in addition to his statutory veto power the power to render every councilmanic action requiring his signature nugatory and indeed, as this lawsuit demonstrates, would confer on him a further and conclusive power to defeat programs of which he disapproves but with which the council desires to proceed. Some cases holding in circumstances similar to those here that the mere execution of documents legislatively authorized is ministerial, are: Fields v. Town of Whitesburg, 195 Ky. 688, 243 S.W. 930 (1922) ; Commonwealth v. Williams, 120 Ky. 314, 86 S.W. 553 (1905); Peejay Corp. v. City of Newark, 136 N.J. Eq. 31, 39 A. 2d 873 (1944); and State ex rel. Historical Society v. Carroll,
The defendant cites Commonwealth ex rel. v. Mayor of Lancaster, 5 Watts 152 (1836) and Commonwealth ex rel. Vandyke v. Henry, 49 Pa. 530 (1865). In the first case the mayor refused to enforce an ordinance providing illegal payments to members of council and in the second the mayor would not execute a lease of coal belonging to the Girard Estate, of which the City of Philadelphia is testamentary trustee, to persons who had offered bribes to city functionaries to procure the lease. These and other cases cited by defendant hold only that the mayor may refuse to enforce plainly illegal ordinances or execute documents pruriently sought. Our conclusion being that the ordinances and deeds here in suit were within the Legislature’s power to enact and otherwise proper, all of defendant’s authorities are inapposite.
As may be gathered from this opinion, this litigation is far from a model of pleading, procedure or presentation. The Authority contends that under Pa. R. C. P. No. 1035, summary judgment may not be en
The law requires a reversal of the order entered below. As the parties and the court below, all of whom support summary judgment one way or the other concede, there is no genuine issue of material fact in the case. We may therefore conclude the matter here.
The judgment below is reversed and judgment is here entered in favor of the plaintiff and against the defendant; the defendant is hereby directed to execute in behalf of the city and to deliver to the Director of the Department of Lands and Buildings of the City of Pittsburgh for his execution and for delivery to the plaintiff, the originals of the deeds attached to plaintiffs complaint as Exhibits C and D.
This direction as to the persons to execute deeds was seemingly made conformably to Section 1 of Art. XV of the Act of March 7, 1901, P. L. 20, as amended, 53 P.S. §23302, requiring all contracts of the city to be executed by the mayor and head of the proper department.
Section 10 of Art. XIV of the Act of March 7, 1901, 53 P.S. §22230.
The defendant has abandoned a defense raised in his Answer and New Matter that the second enactments were ineffective to override his veto for procedural reasons.
See as examples: The City of Pittsburgh v. The Epping-Oarpenter Co., 194 Pa. 318, 45 A. 129 (1900) ; Trustees of the Philadelphia Muscums v. Trustees of the University of Pennsylvania, 251 Pa. 115, 96 A. 123 (1915) ; Trustees of the Philadelphia Museums v. Trustees of the University of Pennsylvania, 251 Pa. 125, 96 A. 126 (1915), for the common law rule tliat a municipality may not, without statutory authority, relinquish public rights in property dedicated to and used for public purposes.