Dormont Borough Appeal
89 A.2d 351
Pa.
1952
Check Treatment

*1 sonably challenge law and society taking its ultimate toll. But since Theodore Elliott did not have I choice, and I believe, say this with the utmost deference to those who, the conscientious discharge of their duty, think his life otherwise, should be saved. Borough Appeal.

Dormont Appeal. Leech March Argued 1952. Before C. Drew, J., Chidsey Bell, Stearns, Jones, JJ. Musmanno, *2 June reargument refused 1952.

Arthur him with Walter W. Wessel, Jr., Riehl, appellant.

John him G. with Herbert V. Wayman, Brownlee, for appellees. by

Opinion Mr. Justice 1952: Jones, May 27, At a sheriff’s sale sur tax and municipal liens of Dormont a tract of Borough purchased claims, land an area of having approximately unimproved and one-half acres. The all of Borough four paid County taxes and took title against dated September Sheriff’s the name Deed, 19, 1942, alone under an Borough agreement with in the of a sale subsequent School District event the School District of the in the proceeds proportion unpaid share its tax after deduction all costs and claims paid claims The land roughly elongated Borough. lay to one shape adjacent, rectangle lengthwise, acre tract which twenty-nine of Dormont Park, side a pub- had and maintained as established Borough of years. lic for a number park and approved ordinance enacted March By 1, 1943, one- four and dedicated the Borough March 3,1943, of Dormont park half acre tract purposes Dis- of March the School Park. resolution By the dedication a sense (in quitclaimed trict confirmed “on condition in the property) its interest pecuniary time the any understanding with but used for Park purposes lands should not be said Borough or sold, conveyed disposed to the School pay shall Dormont, claims. tax unpaid District” amount the latter’s aby Council vote May On 15, 1950, *3 (all being present) adopted members of five to two the indi- to a authorizing grant private a resolution four and one-half purchase to the option vidual for the for the sum acres above-mentioned $50,000 at a total thereon of an apartment house, erection to and according plans specifications cost $5,500,000, Borough to Council. resolu- be approved in the Borough tion directed the event Solicitor, ordinance proper option exercised, prepare was of March ordinance dedication 3,1943. rescinding forth at setting Burgess resolution, vetoed nine reasons his action. in a letter to council length of council questioned power reasons None such ex- the Burgess’s dedication. to rescind the in be sold lots property should pressed view that an apart- of homes rather than thereon for the erection the resolution Council over passed house. ment two) of five to on June by vote (again veto Burgess’s and a written 16, agree- June 1950), (effective and the Borough prospec- between ment of option in ac- on June 17, 1950, executed purchaser tive the resolution. cordance with being taxpayers present appellees, citizens, Tlie petitioned property the Court owners County pursuant Allegheny Quarter Sessions May provisions P. L. Art. the Act 4,1927, praying 53 PS as amended, §12900, Section X, May declared invalid that the resolution 15,1950, illegal. hearing, Quarter the Court of Ses- After four and one- found dedication of the sions that the park purposes had been ac- never half acre tract cepted by public thereupon, an order entered and, petition. petitioners’ appeal, dismissing On the order of the court below. Court reversed pursuant to our allocatur matter before us is now granted Borough’s petition. The basic justified the trial the evidence involved whether findings and conclusion. As the court’s public recognized, dedication to . . the did resolution of the council, case, selling prevent if from public accept did not in fact the land for the uses of the dedication.” municipality’s

A dedication to a use of land accepted owns fee must be binding upon municipality. We order to become not here consider whether such dedication need (as municipally distinguished property, in fee owned acquired or for a condemned otherwise from *4 specific public purpose), accepted by public, be- sufficient comes irrevocable. is accepted by public in a dedication must be such Philadelphia binding Muse- all. In become order to Pennsylvania, University v. 251 Pa. 125, 132, ums that “A dedication to A. it said uses upon binding the dedicator until there become does not part public. acceptance on Dedi- been an has joint owner to effect offer cation is the pub- acceptance land such land and dedicate parties necessary, lie. Two are on one owner side and the there can be no dedication other; y. participation Angeles Kysor, without the Los both; general applicable 125 Cal. 463. rule This a is by private dedication a and there seems to individual, good applicable why be no rule not reason is by municipality. dedication made indi- Where the vidual has made the dedication and no one acted has upon injured may in such manner that he be offer, may though its the former revocation, revoke even there has been an actual dedication and not a mere municipal offer.” With act of dedication us, does embody public. not thereof opposite Attorney dictum to effect General Tarr, rejected expressly 148 Mass. 19 N. E. Philadelphia University this court Museums v. Pennsylvania, supra. Nor do the circumstances of the express acceptance instant case admit of an otherwise public. only by of the dedication It is unmis- keeping pur- takable intended acts user with the pose public’s acceptance of the dedication that the can be evidenced. reversing

In the order entered below, ignoring “the erred in said that lower court public acceptance effect of of the dedication of the tract “capriciously, ig- of Dormont Park . . .” and as controlling importance.” nored of no agree. trial found that With we cannot court appropriate nor did it did funds, “the spend any public the tract of land ac- funds to make indisputed, purposes intended.” It was cessible for the had been court further that “there as the lower found, improvements so- could be no made significance purposes.” of these for Park used findings apparent that “there it is realized when purposes of dedication, . . . a user for-the must (cid:127) support '-such as mainte- dedication, súélf and- acts

89 p. (a), §37 nance 26 v. 101; . . .”: C.J.S. and Johnson City Niagara N. E. 213. 230 Y. 129 N. Not Falls, of only finding quoted negative any did the last above question pub idea that the used part petitioners, lic as a of the but the on their Park, part, utterly resting upon failed to meet the burden prove public Philadelphia them to user: see Electric Philadelphia, Co. v. 303 Pa. 422, 432, A. 492. The they evidence which adduced fell far short of establish ing acts of user four and one-half grievance acre tract as the Parh. Their main building apartment was that of an on house question depreciate values properties, wholly their cf. irrelevant consideration: —a Appeal, Kerr’s 294 Pa. 144 A. 81. 246, 249, testimony upon chiefly petitioners which the re- public acceptance lied on the dedica- plot by boys tion related to the of the small neighborhood petitioners play, a use which the prior failed to had been show made to the dedica- proof greater tion. It was not of the “. . . use ... re- quired acceptance”: v. show Easton 152 Pa. Koch, citing City Ct. 31 A. 2d 327, 338, Watertown 25 S. D. 125 N. Troeh, W. 501. The inescapable persons using inference is that the four neighbor- and one-half acre tract were of the residents large. hood and not the at Such limited use is support finding not sufficient to general Philadelphia public: Electric Co. v. Philadel- supra. phia, petitioners lay cit. further stress on advantages boys plot play of the neighborhood the immediate in contrast with the es- playground proper tablished of the Park available to general public. acts shown Other as evidence of parking plot, user were occasional of cars on storage dump- ashes thereon (done ing by building earth contractors of excavated request Borough), their and not at the instance *6 for World War Victory during the tract Gardens II and one councilman and his picnic by a supper one- on the four and family. “grass” mowing half acre Court cited as evi- Superior which the tract, no amounted to as park maintenance, more, dence than down cutting the testimony reveals, preponderant rank in the summer obscured the weeds whose growth end of the intersections at either clear vision at street local of the plot also, campaign the as and, uses shown Actually, the elimination the ragweed. of any not than be made un- were other what might of ground. and unimproved unkempt plot fenced, in con- fully trial warranted judge The learned “From adduced at the trial testimony the cluding of the rights it cannot be said that the this case, . . .” upon reliance the dedication . public have vested Pa. 136 A. Burnett, Milford municipal plaintiff this case. the directly rules There, an of land his dedica- set owner sought up against tion of To do it was incumbent highway. so, upon of user acts municipality prove an owner’s acceptance sufficient to constitute chancellor found as fact that dedicate. The offer to offer. The no acceptance there was In reversing Superior Court reversed. we chancellor, the decree restoring Court and whether ascertaining 441 et seq., said at p. —“In one is question purely taken place, has in consider- facts, trier of the And where the fact. municipality has evidence, finds ing final, unless his conclusion is dedication, accepted fact of capriciousness the result is finding arbitrarily will not authority A reviewing finder. credibility on the trier’s right pass disregard that, of its judgment substitute witnesses, when the emphasized this Especially,is. fact findér. the. evidence before fact-finder as it was disputed, this case. . . . The rule above announced is as much on the it is on binding as this court. at issue the court below was purely one of fact and learned took into judge considera- tion announced principles above legal applicable to the facts of the he also reached a case; conclusion clearly justified by facts evidence, disputed. But even our meager judgment on it should be under the rule different, an- above must the chancellor’s stand.” nounced, finding is obvious. pertinency foregoing *7 no merit in We see contention that petitioners’ power grant Council was without property question. power to sell option to sell have municipalities properties they jointly at tax broad. sales is See Sec. acquired particularly L. of the Act of P. 72 PS July 28, 1941, 536, §6151.3. be recalled here purchasing will at the tax for it- sale, acting involved An option self and the School District. be the may efficient means of a sale initiating advantageous only the attainment of that end to a is the borough. And, of council agreeing express responsibility convey See Sec. of The Bor- borough. IV, 1201, P. L. 53 PS July Code ough §13311. Court is reversed and The order Quarter Sessions of Allegheny order costs. appellees’ affirmed at County Dissenting Opinion Bell : Me. Justice on able opin- case I affirm this I dissent. for a unanimous speaking Judge Hirt, ion of Court.