Laird v. Pittsburg, 205 Pa. 1

Laird v. Pittsburg

205 Pa. 1 | Pa. | 1903

Opinion by

Mb. Justice Mitchell,

These cases might well be affirmed on the technical ground, found by the court below, that the power of the city to acquire land by eminent domain for park purposes is undisputed, and the ordinance and proceedings for that purpose are regular. But the case having been argued and fully considered on the real ground of controversy, that the use proposed to be made of the land is not within the legitimate scope of park purposes, we proceed to determine the cases on the merits.

*5A public park in the popularly accepted meaning of the present time may be comprehensively defined as a public pleasure ground. The definitions by the lexicographers do not vary much from this. Worcester calls it “a piece of ground enclosed for public recreation or amusement; ” Webster, “ a piece of ground in or near a city or town enclosed and kept for ornament and recreation; ” the Century Dictionary, “ a piece of ground, usually of considerable extent, set apart and maintained for public use, and laid out in such a way as to afford pleasure to the eye as well as an opportunity for open air recreation.” No doubt the idea of open air and space with the land kept in grass and trees, as if approximately in the state of nature, still inheres in the general understanding of the word, but it is no longer the dominating thought as it formerly was. The chief amusements of the great body of our ancestors in England were in the open air, and a park meant for them practically a small or private forest, left in condition for the home of wild animals of the chase. Blackstone defines a park as “ an enclosed chase extending only over a man’s own grounds. The word parkindeed properly signifies an enclosure; but yet it is not every field or common which a gentleman pleases to surround with a wall or paling and to stock with a herd of deer that is thereby constituted a legal park; for the king’s grant or at least immemorial prescription is necessary to make it so. Though now the difference between a real park and such enclosed grounds, is in many respects not very material; only that it is unlawful at common law for any person to kill any beasts of the park or chase, except such as possess these franchises of forest, chase or park: ” 2 Comm. 88.

With the change of manners and habits of the people came also a change in their associations with the use of words. The idea of a public park in or near a city as a place of resort of the people generally for recreation and amusement necessarily banished the idea of a home for wild boasts of the chase even in a very modified state of nature. The trimming away of thickets and underbrush, the substitution of regular pathways paved and perhaps railed and artificially lighted, which would have been incongruous to our forefathers now enter into the accepted idea of a park. The growth of sentiment for artistic adornment of public grounds and buildings is part of the history *6of our time and country. Public parks have come to be recognized as not only the natural place for walks and drives afoot, awheel or with horse and carriage, for boating, skating and other outdoor athletics, but also as the appropriate and most effective location for monuments and statues, either to historic heroes or to pure art, fountains, flower displays, botanical and zoological gardens, museums of nature and of art, galleries of painting and sculpture, music stands and music halls, and all other agencies of aesthetic enjoyment of eye and ear. The parks of cultivated Europe are filled with works of art, and the great cities of this country are following fast in the same direction. Schenley Park in Pittsburg with which this case is immediately concerned, already devotes a portion of its space, as found by the court below, to the Phipps Conservatory of flowers, to music stands and to the Carnegie Free Library building, as well as to athletic grounds and a race course. The Carnegie Free Library building, as also found by the court below, contains a free library, an art gallery, museum and music hall, all free to the public.

The power to take by eminent domain is expressed in the statutes to be “for the purpose of public parks.” No further legislative definition is given, and it must be assumed that the words are used according to their general understanding. This as already indicated includes all the customary forms of the use of land as a public pleasure ground. The Free Library Building as already said contains an art gallery, museum and music hall besides a free library. The latter is as much devoted to the public recreation as the other parts. It affords a place of resort and entertainment for the public at large in rainy and inclement weather, and at all times for those who prefer quiet study to sight-seeing or more active amusement. It may be conceded as argued by appellants that a library in itself is not an integral part of a park, and were the taking here complained of a taking directly and solely for a library site, a different question would be presented. But a library occupying only a very small fraction of the park area, not interfering at all substantially with its open air and free space, does not differ in legal effect from the museums, picture galleries, music stands and other incidental means of promoting the entertainment and pleasure of the people. Should the city, therefore, decide to devote the *7land now in controversy to the enlargement of the Free Library Building it could not be fairly said to be a use outside of what is legitimately implied in the authority to take for a public park. We have not found or been furnished with any case on the exact point here raised, but the analogous principles applicable to the use of a public square in a town plot, are discussed in Com. ex rel. v. Connellsville, 201 Pa. 154, and cases there cited.

The further objection that the city cannot take this land because the Carnegie Free Library is not under the control of the city and its property is distinct from that of a public park, is also untenable. The city takes and keeps the title and control of the land, though it commits the ordinary management, what may be called the police administration, to a board of direction in which it has by election and ex officio a representation of one half. This is not a taking of the property for a private institution.

Decree affirmed with costs.