Allen v. Birmingham Township

Aug 6, 1968
Appeal, 251
Versions:

Opinion

Per Curiam,

This is an action in equity filed by appellants, residents of Birmingham Township, Delaware County, seeking to (1) enjoin appellee, James Julian, Inc., owner of a tract of land in said township from removing earth from said land as an improper commercial enterprise within an area zoned for solely residential purposes, and (2) void a contract negotiated between James Julian, Inc. and appellee, Birmingham Township, which contract permitted the enterprise complained of by appellants.

James Julian, Inc. is a general contractor engaged in the construction of a federal highway known as Interstate 95. The earth which Julian was removing from its tract in Birmingham Township was being used as “fill” in the construction of this highway.

The contract between James Julian, Inc. and the township allows this excavation to continue for two years commencing August, 1966. However, the president of James Julian, Inc. testified that the work would only continue until June or July, 1967, thereby indicating that the full two years would not be necessary.

We have been informed that at the present time James Julian, Inc. has completed excavation of the subject land. Hence, since the alleged unlawful conduct on the part of appellees lias ceased to exist, and since there remains nothing for this Court to enjoin, the issues involved in this appeal are now moot. Our action in refusing to review the merits of the present controversy should in no way he interpreted by the parties to be an approval or disapproval of the lower court’s failure to grant an injunction. Likewise, this should not be construed as a sanctioning or licensing of the alleged unlawful conduct on the part of appellee, James Julian, Inc.

The appeal is dismissed. Each party to bear own costs.

Mr. Justice Roberts concurs in the result.