Opinion by
The City of Pittsburgh on July 11, 1947, adopted Ordinance No. 263 of 1947 pursuant to the Act of Assembly of July 2, 1937, P.L. 2793, 53 P.S. §133Í-3. This Ordinance authorized the City to acquire a. fee simple title to Diamond Market House and the land on which it is erected, known as Diamond Square, and to sell the said property to the highest responsible bidder for private use; and steps were taken to consummate said sale. Plaintiffs filed a bill in equity to enjoin the proposed sale. The original plaintiff brought his action as a resident and taxpayer and as a farmer who sold his produce at the Diamond Market House and on behalf of other farmers similarly situated. The intervening plaintiffs are owners of a lot fronting on Diamond Square.
The lower court held that the City of Pittsburgh had no estate or title in or to the property known as Diamond Square; that the aforesaid Act of 1937 did not apply to property in which the City had no estate; *389 that the aforesaid City Ordinance passed pursuant to said Act was illegal and void; and granted an injunction restraining the City from proceeding to acquire a fee simple title to Diamond Square and from selling said land under said Ordinance.
Diamond Square is a strip of land about 260 by 280 feet, an area of seventy-two thousand eight hundred square feet, located at the intersection of Market and Diаmond Streets in the First Ward of the City of Pittsburgh. This square was laid out in 1784 in the original plan of the Town of Pittsburgh drafted by Colonel George Woods, surveyor, acting for John Penn and John Penn, Jr., the then owners of the land; and lots fronting on Diamond Square were sold pursuant to said plan. When the original plan of the Town of Pittsburgh was laid out, neither the City or Borough of Pittsburgh nor the County of Allegheny were in existence. There is no other specific evidence that this tract of land was dedicated as a public square or otherwise, or that there was a formal acceptance of a dedication ; however, it is agreed by the parties herein that because contemporaneous deeds refer to Diamond Square as a public square and because of the decision of Judge Stowe in Holmes v. City of Pittsburgh, 35 P.L. J. 491, in 1888 the law has conclusively presumed a grant from the original proprietor for public square purposes.
On July 8, 1794 the Borough of Pittsburgh, the predecessor of the City of Pittsburgh, authorized the erection of a public market house and market stalls on the easterly half of this square. In 1795 the County of Allegheny erected on the westerly half of the square a Court House which was maintained and occupied as such until 1836. A new Court House having been erected, on August 11,1841 the Commissiоners of Allegheny *390 County sold the “Old Court House building and offices” at public auction to one William Eichbaum, who assigned all his right, title and interest in the building to the City of Pittsburgh by an instrument dated August 18,1841. On November 10,1841 the Commissioners of Allegheny County transferred to the City of' Pittsburgh all' its right, title and interest in the Diamond Market'“for such Estate and under such conditions as the said County of Allegheny at the time of the sale aforesaid had and held the same.”
In 1852 a new building was -erectеd by the City on the westerly portion of the square; the first floor was used by the City as a-City. Hall and the second floor as a public meeting-house.-In-1868, a-new City-Hall having been built, the -first floor was used for .market purposes in addition to the market house on the easterly half, of the square.
■ In the course of time Market Street became extended through Diamond Square and the market house occupants encroaсhed on Market Street and interfered with traffic. The case of Holmes v. City of Pittsburgh, 85 P.L.J. 491, followed and Judge Stowe held that it must be concluded that Diamond Square had been dedicated as a public square “to be used for the purposes to. which such squares were usually dedicated, such as market-houses, court-houses, or other public buildings”; that.it had been so long used for purposes “consistent with the dedications of such squares to public uses in this State” that “the law will now conclusively presume a grant from the original proprietor for such uses.” The City could therefore maintain its market houses “as now erected” but it was enjoined from interfering with that portion of the square, being a continuance of Market Street, which was used as a public street or highway.
■ ,In 1914 Diamond Street was opened through the square -and -the City erected a new market house con *391 sisting of four units of two stories and a mezzanine floor each, joined together by an archway over Diamond Street and a bridge over Market Street. The City of Pittsburgh operated the market house until 1936 when it entered into an agreement with the Pittsburgh Market House Protective Association under the terms of which that Association operated the market house and paid rent to the City. This arrangement hаs continued to.the present; the last agreement being executed, in 1941 and expiring in 1946.
.. Diamond Square became a financial burden and the City fathers being in need of revenue decided to sell it to the highest bidder. Prom an injunction restraining the.sale, the City has appealed.
We shall first dispose of defendant’s preliminary contention that plaintiffs have no standing in equity. This is without merit:
Trustees of Philadelphia Museums v. Trustees of Univеrsity of Pennsylvania,
The next question of importance is whether the City of Pittsburgh has the power to alienate lands which have been dedicated to the public. The applicable principle of law is well stated in 3 Dillon, Municipal Corporations, 5th Ed., Sec. 1102: “A municipal corporation has no implied or incidental authority to alien, or to dispose of for its own. benefit, property dedi *392 eated to or held by it in tf-ust for the public use or tо extinguish the public uses in such property, * nor is such property ... or the proceeds of sale thereof available for the payment of the debts of the municipality.”
This has been the law of Pennsylvania for over a century:
Commonwealth v. Rush,
In
Commonwealth v. Rush,
The aforesaid injunctive decree was affirmed on the opinion of the court below which said inter alia (page 189)
: “. . .
the usual mode of dedicating streets, squares, &c. to the public, in this State, is simply to
*393
designate them on the plat or draft of the town as such, and if a square is intended, the purpose for which intended is there inserted; and this is a good and valid dedicаtion, which will be binding on the parties concerned: 6 Pet. Rep., Barclay & Howell; id. 431;
“The next question is — Have the city councils a right to sell and convey this property to individuals for private purposes?” . . .
“. . . The pretence is, that because the proceeds of the sale of this square are applied to the public purpose of supplying the city with water, that, therefore, the city councils have designated this as the public purpose to which this square shall be applied. But this pretext is almost too barefaced to require a serious answer. It is not the proceeds of the square the uses of which the city councils are authorized to declare, but it is the property itself which is vested in them for public uses, and to no private use can they possibly apply it. Their power over it is restricted and cirсumscribed; it is not theirs to sell or to dispose of; they may control it within their right, and designate the use, but can go no further. What difference is it to what use the proceeds are applied? The property is not theirs for sale. The use to which it is to be applied is but a debt — the private debt of the corporation; and it is violating the first principle of a trust when the trustee attempts to apply the trust propеrty to his own use or to make money out of it. The city authorities, therefore, had no right to sell this property, and the title of the purchasers derived from them is wholly defective, and can avail them nothing.”
In
Ormsby Land Co. v. Pittsburgh et al.,
Commonwealth v. Alburger,
The City of Pittsburgh contends, however, that even though it may lack the power per se to dispose of dedicated land, the State Legislature may and by the Act of July 2, 1937, P.L. 2793, 53 P.S. §1331-3 has conferred authority upon it to dispose of such dedicated land. It is unnecessary to decide the broad question of. legislative authority or whether a city may sell for a private use property which has been dedicated to the public; since we are of the opinion that there has been no legislative authorization for the city’s acquiring title to or making any sale of the property known as Diamond Square.
The aforesaid Act of July 2, 1937 is entitled “An Act authorizing and empowering any city, county, school district, or other municipality which shall have acquired a limited title to real estate for municipal purposes, to secure a title in fee simple to any such real estate; and providing and regulating the procedure in such cases.” Section 1 provides “Be it enacted, &c., That any city, county, school district, or other municipality shall have power, in the method herein prescribed, to acquire title in fee simple to any real estate to which such municipality shall have previously acquired a lesser estate in any manner; provided that such real estate shall have been used or held for a public purpose for a period of not less than ten years.”
The City argues it has at least an easement in the property known as Diamond Square and that an easement is a lesser estate (than a fee simple) and therefore under said Act it can acquire a fee simple title to said property; and thereafter sell said property for a private use, on the twofold theory that a sale will produce more money for the taxpayers and that a dead hand cannot stop the progress or rehabilitation of a *397 great city. Emotional arguments cannot set aside settled principles of the law of property; and even if it were otherwise, future City fathers may feel that human values — air, light, rest, recreation and health which can be derived from any public square — are more important and valuable to the citizens of Pittsburgh-than the increased revenue ivhich will likely be produced by a sale of this рublic property.
In order to determine the meaning and intent of said Act of 1937 which in the last analysis is the sole authority for the City’s proposed sale, it is necessary to first determine who has title to said real estate and what title or estate the City of Pittsburgh has therein. Title to the property known as Diamond Square is vested in the Commonwealth of Pennsylvania with a reversionary interest in the heirs of John Penn and John Penn, Jr.
Mahon v. Luzerne County,
The сourt below correctly found that “The City of Pittsburgh has no estate or title in or to Diamond Square. All it has is the right to [regulate or] control [as trustee for the public who have a right of user or easement therein] the public use of the square, in the exercise of its police power, during inaction of the Legislature and of the County Commissioners.”
The aforesaid Act of 1937 was never intended, in our opinion, to authorize a municipality to extinguish the public interest in lands which had been dedicated to public use. The title of the Act is significant in stating that it empowers a municipality to secure a fee simple title where the municipality “shall have acquired
a limited title
to real estate
for municipal purposes
. . . .” No title to real estate for municipal purposes
*398
was ever acquired by the City of Pittsburgh; title, a¡§ we have stated, was vested in the Commonwealth'for the use and benefit of the public at large. The title of a statute may be considered in the construction thereof :
Wiley v. Umbel,
The City nevertheless contends that the title of a statute cannot restrict the body thereof; that this statute specifically allows a municipality to acquire title in fee simple to any real estate to which such municipality shall have previously acquired q lesser estate; that under said Act it can acquire a fee simple title since it now has an easement or lesser estate; that havr ing acquired a fee simple title it can sell and dispose of said property for private use; * and that any owners of a reversionаry interest are protected under said Act.
The precise question which first confronts the City is whether said Act of 1937 was intended to authorize it to acquire a fee simple title in lands which are owned by the Commonwealth.
“It is axiomatic that a statute is never presumed to deprive the state of any prerogative, right or property unless the intention to do so is clearly manifest, either by express terms or neсessary implication. Baker et al. v. Kirschnek et al.,
In
Culver v. Commonwealth,
A similar principle was asserted in
Commonwealth of Pennsylvania, State Employes’ Retirement System v. Dauphin County, et al.,
It is therefore clear, under the facts in this case and the aforesaid аpplicable authorities, that said Act of *400 July 2, 1937, gave no right, power or authority to the City of Pittsburgh to acquire a fee simple title in or to sell Diamond Square.
Equally unavailing is the claim of the City of Pittsburgh that it acquired title to this dedicated land by prescription or by adverse possession or by lapse of time, because none of these suffice to give the City a title as against either the public or the Commonweаlth.
Rung v. Shoneberger,
Moreover the defendant is in no position to claim title by acts of alleged ownership or control, first, because it has a right and duty on behalf not of itself but of the public to regulate and control the public use of Diamond Square as a public square and a right to erect or remove buildings thereon; and secondly, because the more important acts on which it relies to evidence ownership were taken pursuant to authority granted by the legislature of the Commonwealth of Pennsylvania.
For the above mentioned reasons, it is unnecessary to discuss or decide the interesting and important constitutional question of whether the legislature can authorize a municipality to sell for a private use property which has been dedicated to the public, although some cases have held that no such authority exists; * even *401 though an incidental benefit accrue to the public, and even though provision be made for compensation to those persons who have a fee simple or reversionary interest.
Decree affirmed; costs to be paid by City of Pittsburgh.
Notes
Italics throughout, ours.
Section 3 provides that, “if the municipality' shall have sold such real estate . . . the price or sum received . . . shall be prima facie evidence of the value of such real estate ....’’
Commonwealth v. Rush,