129 A. 637 | Pa. | 1925
Argued April 20, 1925.
What is known as the Parkway extends through the City of Philadelphia in a northwesterly direction from the City Hall to Fairmount Park. It was first placed on the city map in 1892, but was removed therefrom two years later. The project was renewed and assumed shape in 1903, when in a more definite form it was again placed on the city map. Other city ordinances were enacted, among them that of 1909, revising the lines of the Parkway, also ordinances appropriating the land, etc. In sympathy with the movement, statutes were enacted, including that of June 8, 1907, P. L. 466, section 1 of which expressly authorizes the taking of land for the *425
Parkway. True, other sections of the act, purporting to authorize the taking of land within two hundred feet of the Parkway by the city, to resell, were declared unconstitutional in Penna. Mut. Life Ins. Co. v. Phila.,
Formerly the Parkway was under the control of the Department of Public Works, but in 191.5 the city, pursuant to legislative authority (see Act of April 17, 1913, P. L. 93), placed it under the control of the defendants as commissioners of Fairmount Park, who took possession thereof including this triangle, intending to place thereon, near plaintiff's east line, a statue of President *426 McKinley, and started to remove the walk above-mentioned when restrained by an injunction granted in the instant case. From the bill, answer and testimony, the chancellor made findings of facts, etc., on which in due course a final decree was entered permanently enjoining the defendants from the erection of the statue or any other structure in such proximity to plaintiff's property as to prevent the use of the triangle as a means of access thereto, and defendants brought this appeal.
The decree cannot be sustained. The Parkway is neither exclusively a street nor exclusively a park but partakes of the character of both. The statutes, the ordinances and the decisions of this court have all treated it as more than a street, as, in fact, in a class by itself. That is why it was placed in the hands of the Commissioners of Fairmount Park, and why we held the property owners could proceed at once to have their damages assessed, before it was formally opened or taken over by the city (Philadelphia Parkway,
The ordinance transferring the control of the Parkway to defendants provided that it should be, "Without interfering, however, with the authority of the Departments of Public Works and Public Safety to complete the construction of the street improvements and the installation of the street fixtures required upon the opening of the Parkway or the jurisdiction of the police to enforce the criminal laws in any of said grounds." While this prevented the defendants from interfering with the completion of work then in progress, possibly including the construction of the walk across the triangle adjoining plaintiff's property, it did not render such improvements immune to changes by the Park Commissioners.
The proceedings to assess the damages for property taken for the Parkway were in the court of quarter sessions and called it a street, but the proceedings were properly in that court whether the land was taken for street or park or both. See Opening of Parkway, supra; also section 7 of the Act of April 21, 1855, P. L. 264, 266; section 4 of the Act of May 13, 1857, P. L. 489, and section 5 of the Act of April 23, 1841, P. L. 287. The city's title to the land in question is not controverted nor is its character determined by the name given to the condemnation proceedings. The land lying inside and outside the so-called street lines was taken in the same proceeding and that it was all taken nominally as *428 a street does not change its character or preclude the city from using parts thereof for park purposes.
Moreover, the decree is wrong, even treating the entire Parkway as a street. An abutting landowner has not an absolute right of access to his property at every point where it may touch the highway; if so he could prevent any adornment thereof by the city. Whereas, municipal authorities, where not inconsistent with the reasonable rights of adjoining landowners and of public travel (as the proposed use of this triangle is not), may beautify spaces within the lines of highways, with lawns, shrubs, trees, statues, monuments, etc., as such authorities may deem proper. "A city has power to set aside portions of its streets or sidewalks for the construction of boulevards, grass plots, or other purposes, useful or ornamental only, and to protect the same from the encroachments of travel": 28 Cyc. 953. And Dillon on Municipal Corporations (5th ed.), vol. 3, sec. 1150, says: "Although a street is ordinarily intended for purposes of public travel, yet the municipal authorities in opening and laying out streets are not rigidly limited to that use. A street may in part unite the two purposes, one to furnish a way for travel and the other as a park or public place. These elements have frequently been united, and there are many cities where roads, boulevards, and avenues have been opened for the purpose of travel, and in connection with such use, lands have also been acquired for the sole purpose of furnishing ample space in order that the enjoyment of the street itself by the inhabitants of the municipality may thereby be enhanced." Also Martin v. Williamsport,
Plaintiff's standing to maintain this suit in equity was not raised, nor have we considered it.
The decree is reversed, the injunction is dissolved and plaintiff's bill is dismissed at its cost.