31 A.2d 747 | Pa. Super. Ct. | 1943
Submitted March 9, 1943. The question presented by this appeal is the tax-ability of certain real estate owned by a municipality. By a bill in equity the city of Easton sought an injunction to restrain the County Treasurer and the County Commissioners of the County of Northampton from selling, for nonpayment of delinquent taxes for 1938, certain parcels of real estate owned by the city and located in the township of Bushkill and in the township of Williams. A preliminary injunction was granted. Subsequently the road supervisors and the school directors of the two townships were joined as additional defendants. The chancellor made certain findings of fact and conclusions of law, and dissolved the preliminary injunction in so far as it related to the Jacobsburg tract and South Delaware Park. After hearing on the exceptions filed by the city, the court in banc made additional findings of fact and conclusions of law, and amended some of the findings of fact and conclusions of law of the chancellor. It dismissed the exceptions and entered a final decree. The city has appealed.
The city contended that the proposed sales for nonpayment of taxes should be enjoined because the two tracts of land were public property used for public purposes and exempt from taxation.
The court below concluded that both tracts of land were not exempt, and entered a final decree accordingly.1 We shall consider the reasons and their validity *330 separately; and our discussion will be limited to the questions presented.
It is to be noted that there is a distinction, for the purposes of taxation, between property owned by private corporations, institutions, and individuals and that owned by a municipality and devoted exclusively to public purposes. Robb v. Philadelphia,
Article 9, § 1, of the Constitution of Pennsylvania, as amended by the amendment of November 6, 1923, reads in part as follows: "All taxes shall be uniform, upon the same class of subjects, . . . . . . and shall be levied and collected under general laws; but the General Assembly may, by general laws, exempt from taxation public property used for public purposes. . . . . ."
The General County Assessment Law, Act of May 22, 1933, P.L. 853, 72 P. S. § 5020 — 101 et seq., which amends, revises, and consolidates the law relating to taxation for local purposes, was passed by the General Assembly pursuant to this constitutional authority. Section 204, 72 P. S. § 5020 — 204, sets forth the property which "shall be exempt from all county, city, borough, town, township, road, poor and school tax," and includes the following: "(g) All other public property used for public purposes, with the ground thereto annexed and necessary for the occupancy and enjoyment *331 of the same."2 Clause (1) of the same section provides in part: ". . . . . . all property, real or personal, other than that which is in actual use and occupation for the purposes specified in this section, and all such property from which any income or revenue is derived . . . . . . shall be subject to taxation. . . . . ." See Dornan v. Philadelphia Housing Authority et al., supra, page 228, footnote 15.
The finding may not be a pure finding of fact (see *332 Altaffer et ux v. Anderson Automobile Co. et al.,
The court below in its opinion has summarized the testimony upon which its finding and conclusions are based as follows:
"The Jacobsburg tract contains five hundred thirty-seven (537) acres of land located in Bushkill Township, Northampton County, Pennsylvania, between eight and eleven miles from the City of Easton. It was acquired by the City of Easton along with the other property and franchises of the Northampton Consolidated Water Company. The evidence reveals that while the Northampton Consolidated Water Company acquired the property as a future source of water supply, it had never been connected in any manner whatsoever with the water supply system of said company and has since its acquisition by the City of Easton never been connected with the water supply system of said city. No dam or reservoir exists on the property and there are no pipelines on the property connected with the municipal water plant. While the Northampton Consolidated Water Company owned the property it made no effort to impound the water or did any work upon the property outside of making preliminary surveys and drilling three test wells. Since the City of Easton took over the property in 1936 no work has been done toward the development of this tract as a future source of water supply, except that all of the buildings on the tract have been removed and the city through a WPA Project is now making a survey of the entire tract for the purpose of running elevations to prepare contour maps of the whole section and to place monuments on boundary lines. It appears from the testimony that the tract is suitable and adaptable as a *333 future source of water supply, that the land is held for that purpose and was not being used for any other purpose in 1938."
This land has not been, and there is no certainty that it ever will be, used as a source of water supply, or for any other public purpose, and it was not required for the protection of the purity of the present water supply. See Roaring Creek Water Co.v. Girton et al.,
"5. A portion of the City Park owned by the City of Easton was in actual use and occupancy for a public purpose and a portion thereof was not so used and occupied when the assessment on this property was levied in 1938 and the tax due. Since no separate assessment was made for the tax exempt portion, we are without authority to apportion the tax."
The court in banc found, in an amended finding of the chancellor and in additional findings, that certain portions of the tract were not in actual use and occupancy for public use as a park, and that a portion of the tract along the South Delaware River Road, comprising 2.72 acres more or less, was in actual use and occupancy for public park purposes when the assessment on this property was made in 1938, and therefore exempt from 1938 taxes. Such findings are entitled *334
to great weight, but it is still the duty of the appellate court to determine whether the ultimate result reached was based on a proper understanding of the facts proven, and a correct application of the legal principles. Binswanger v. Hyman,
The court in banc approved the chancellor's sixth conclusion of law whereby the preliminary injunction restraining the sale of this tract for delinquent taxes of 1938 was dissolved, but held that the bill in equity in so far as it pertains to this tract must be dismissed for the reason that equity has no jurisdiction to enjoin the sale thereof, because the property was only partially exempt. See Dougherty v. Philadelphia et al.,
There is no dispute as to the basic or material facts in connection with this tract; the controversy arises from the application of the law to the facts.
This tract of land contains approximately 97 acres. It is located in Williams Township, Northampton County, about one and a half miles south of the southern boundary line of the city. The city originally acquired the land in 1918. By resolution of May 31, 1923, it was dedicated by the municipal authorities as a public park, and in the same year the city council passed an ordinance annexing it to the city. The ordinance was declared invalid by this court for the *335
reason that the park did not adjoin the city. Williams Township'sAppeal,
The city has waived its claim to exemption for the house and lot separately assessed at $750.
There is no doubt that Trustees of the Philadelphia Museums v.Trustees of the University of Pennsylvania et al.,
Under either theory we think the result in the present case must be the same.
It could not be denied that the city intended to dedicate the entire tract of 97 acres as a public park (see Davis et al. v.Kahkwa Park Realty Co. et al.,
We recognize that the question of public acceptance by user is generally one of fact determined in equity by the chancellor(Kniss v. Borough of Duquesne,
The portion of the property along the South Delaware River Road was used by the public for games and *337 other amusements. This portion of the tract was also used by the public as a camping site for tourists, which was supervised by the Board of Health and Police Department of the city. No charge was made for the parking of cars or for the setting up of tents or camps by persons using the premises. The city expended tax moneys to level the land for a baseball field, and to supply playground facilities. A part of the 97-acre tract is woodland. In 1928 and 1929 the city planted about 30,000 trees, and a roadway was constructed through the tract to this section where from the top of the hill there is a view of the Delaware River Valley, Delaware Water Gap, and Wind Gap. In 1938, between 25 and 30 acres of the tract were farmed by the city, chiefly to produce feed for horses owned by the city. There is game on the land, and the public hunted thereon. There were no restrictions on the rights of the public to use the entire tract as a park.
While one of the essential elements of a complete dedication may be acceptance by the public, public use of the entire property is not necessary. Trustees of the Philadelphia Museumsv. Trustees of the University of Pennsylvania et al., supra,
The tract was purchased by the city as one property; it was dedicated by the city in its entirety for park purposes. We think the requisites of acceptance were fully satisfied. As we view it, the only permissible conclusion from the facts is that the public accepted the park and used it in the manner intended, and that the dedication was complete; and while the use of some portions of the tract was not as constant and extensive as of other portions, it was such as the public was likely to make of this type of park. See Phillips et al. v. Laguna Beach Co. et al.,
The circumstance that a portion of the property was also used for farming to produce feed for horses owned by the city did not alter or change its character as part of the premises used for its essential objects. The dominant purpose for which the tract was dedicated was maintained, and incidental income and uses not in derogation thereof would not be sufficient to make the entire tract subject to taxation. See School District of Pittsburgh v.County of Allegheny, supra.
The property had been dedicated and was maintained by the city for a public park, which may be comprehensively defined as a public pleasure ground which affords *339
pleasure to the eye as well as opportunity for open air recreation. See Laird v. Pittsburgh et al.,
There is no evidence of an intent by the city to violate the rights of the public in the entire property. The limited farming for which a portion of the tract is used has no such effect. If there should be such a violation this is a matter which may be considered when it arises.
We do not see how the presumptive right to exemption from taxation is affected by the fact that all the land in question may not have been physically used by the public. Such usage may never be attained. Like any large tract of land, a park may have nonusable portions or parts to which the public may not generally be attracted; it is none the less a public park. But if it was proper to dedicate the whole which the public may use, acceptance was accomplished when it was found to have been made available by the expenditure of public funds and used for the purposes dedicated, although such actual usage may be largely confined to a part of the entire acreage. We deem such usage as appears in the present case sufficient to imply an acceptance by the public of the entire tract for park purposes. *340
It seems to us immaterial that the entire park was not equally or similarly used after dedication. For example, the acceptance by user of a dedicated street constitutes it of the full width, although only the traveled portion may be used by the public. SeeState Road,
The decree of the court below as to the Jacobsburg tract is affirmed; the decree of the court below as to South Delaware Park is reversed, and the record is remitted with directions to enter a decree in conformity with this opinion; the costs shall be paid equally by appellant and appellees.
