Appeal, No. 107 | Pa. Super. Ct. | Nov 15, 1951
Opinion by
In 1942 the Borough of Dormont acquired title to approximately 4% acres of land by sheriff’s deed for nonpayment of taxes and municipal claims. The tract is bounded on the south by Annapolis and on the east by Dormont Avenues; it joins Dormont Park on the north and west. The Borough on taking title, paid all delinquent county taxes in full and took title with the full consent of the school district of the Borough. By ordinance which became effective on March 3, 1943, the Borough dedicated the land “to the general public for park purposes and to become a part of Dormont Park”, a tract of 29% acres used by the public as such for many years. The school district, by resolution, consented specifically to this dedication of the land for park purposes. On June 5, 1950, by resolution passed by a majority of the Borough council over the veto of the Burgess, the Borough, for a nominal consideration, gave an option to James W. Stevenson, Jr., for the-purchase of The entire 4% acre tract for $50,000 payable within 6 months from the above date. Thereupon the present appellants by complaint addressed to the Court of Quarter Sessions of Allegheny County under Art. X, §1010 of the Act of May 4,1927, P. L. 519, as amended/53 PS §12900, questioned the legality of the option. The complainants-all are citizens-of the Borough-who own real, estate in the. vicinity of the tract in question. As such owners’ they .are' persons- aggrieved' within the purview of the Act. Cf. Hoffman et al. v. Pittsburgh et al., 365 Pa. 386" court="Pa." date_filed="1950-10-02" href="https://app.midpage.ai/document/hoffman-v-pittsburgh-1931174?utm_source=webapp" opinion_id="1931174">365 Pa. 386, 391, 75. A. 2d 649. After hearing the lower court iii effect heldThatlhé Borough had the power to grant the option, notwithstanding thé' prior dedication of -the -land -for park purposes-; accordingly the complaint was dismissed. Hence, this appeal......
Municipalities are not sovereigns and they do not possess' and cannot exercise'powers mother than - those granted by statute in express words or by .necessary
In general a municipality is without power' to alienate lands dedicated to the public for park purposes; The rule is decisively affirmed in Hoffman et al. v. Pittsburgh et al., supra, p. 391, in this language: “The applicable principle of law is well stated in 3 Billon, 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 dedicated to or held by it in trust for the public use or to 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.’” In that case, on the authority of cited cases, it is noted that “This has been the law of Pennsylvania for over a century.” However, the dedication to public use in the present case, by resolution of the Borough council, did not prevent the Borough from selling the property if the public did not in fact accept the land for the uses of the dedication. In Phila. Museums v. University of Pa., 251 Pa. 125" court="Pa." date_filed="1915-10-28" href="https://app.midpage.ai/document/trustees-of-the-philadelphia-museums-v-trustees-of-the-university-6252875?utm_source=webapp" opinion_id="6252875">251 Pa. 125, 132, 96 A. 126, it is said: “Dedication is the joint effect of the offer of the owner to dedicate land and acceptance of such land by the public. Two parties are necessary,
A public park has been defined “as a tract of ground kept more or less in its natural state, or embellished by the planting of additional trees and flowers, and devoted to the purpose of pleasure, recreation and amusement”: Bernstein v. Pittsburgh, 366 Pa. 200" court="Pa." date_filed="1951-01-02" href="https://app.midpage.ai/document/bernstein-v-pittsburgh-2352264?utm_source=webapp" opinion_id="2352264">366 Pa. 200, 206, 77 A. 2d 452. In our view but little evidence is required to establish acceptance by the public where as here the dedication is of additional land adjoining an existing public park. Although the opinion of the lower court does not contain findings of fact, we, under the circumstances, may examine the record in this appeal to determine whether the evidence establishes public acceptance of the land for park purposes since the lower court, in legal effect capriciously, ignored the question as of no controlling importance. Cf. Milford Borough v. Burnett, 288 Pa. 434" court="Pa." date_filed="1927-01-18" href="https://app.midpage.ai/document/milford-borough-v-burnett-3846922?utm_source=webapp" opinion_id="3846922">288 Pa. 434, 442, 136 A. 669. The question, in the light of proof of acts indicating acceptance, is one of law in this appeal. Cf. Easton v. Koch et al., 152 Pa. Superior Ct. 327, 336, 31 A. 2d 747.
The fact that the Borough may have spent little in maintenance or in improving the land has no bearing on the question of the effectiveness of the dedication of the tract for park purposes by the resolution of the Borough council. To invite public acceptance there was no need for a duplication of the swimming pool and other recreational facilities already existing in the adjoining Dormont Park. The councilman in charge of maintenance testified that after the dedication no distinction was made between expenditures for
These uses by the public, at will, in our view are abundantly sufficient to establish public acceptance of the dedication of the tract in question as a public park. The resolution of the Borough of Dormont of June 5, 1950, is invalid and of no effect.
Order reversed.