Keene v. Borough of Bristol

| Pa. | Jul 1, 1856

The opinion of the court was delivered by

Knox, J.

The complainant has filed a bill in this court to enjoin the defendants from opening a street through her lands in the borough of Bristol. The motion now before us is for a preliminary injunction; and all that is necessary for us to say at this stage of the case is, that the argument has failed to convince us that the act of 18th February, 1858, which authorizes the burgess and town council of the borough of Bristol to lay out and construct streets in said borough, is unconstitutional.

Ordinarily the power of taxation which is given to municipal corporations is adequate security to the citizen for his property which may be taken in opening streets for public use. No other security need be required in the act of the General Assembly giving the corporate authorities power to open streets. Where, however, it is clearly shown that the power of taxation is inadequate within a reasonable time to pay the damages likely to be occasioned, we have no doubt that it is the right and duty of this court to interfere, when properly called upon, and prevent the property from being taken or the damages from being done, until adequate security is given. The present is a case which requires such interference. The power of taxation in the borough of Bristol is so limited that the amount of damages likely to be occasioned to the complainant’s land in all probability could not be paid out of the public treasury of said borough within any reasonable time. To make the complainant perfectly safe, we will not allow the street to be opened through her lands, until the bond of the borough with one sufficient surety in the penal sum of five thousand dollars be given, as mentioned in the annexed'

Order. — And now, July 16th, 1856, it is ordered that the burgess, town council, and street commissioner of the borough of Bristol, in the county of Bucks, their servants and workmen, be enjoined from entering upon and taking possession of the lands and premises, or any part thereof, of Sarah L. Keene, in the borough aforesaid, and from laying out, opening, and grading a street called Dorrance street, through said lands and premises, until the said burgess and town council shall give a bond with one surety, to be approved of by a member of this court, in the penal sum of five thousand dollars, conditioned to pay to Sarah L. Keene all the damages which may he adjudged to her by reason of the laying out and opening said street through her lands and premises.

Said bond, after being approved of as aforesaid, to be tendered to the complainant, and if not accepted by her to be filed amongst the records of the Court of Nisi Prius at the city of Philadelphia, to which court the record of this case is remitted for further proceedings according to law.

This special injunction not to issue until the complainant shall give her bond with sufficient sureties, to be approved of by one of the judges of this court in the penal sum of five hundred dollars, conditioned to indemnify the defendants for all damages that may be sustained by reason of this injunction.