242 Pa. 47 | Pa. | 1913
Opinion by
By Section 1 of the Act of June 8, 1907, P. L. 466, cities of the Commonwealth are authorized to purchase, acquire, use and appropriate private property for the purpose of making, enlarging, extending and maintaining public parks, parkways and playgrounds whenever councils shall determine thereon. Section 2 confers like authority on cities for appropriating “neighboring private property, within two hundred feet of the boundary lines of such property so......appropriated for...... parkways......in order to protect the same by the resale of such neighboring property with restrictions, whenever the councils shall......determine thereon: provided, that in the said ordinance......the councils shall declare that the control of such neighboring property ......is reasonably necessary, in order to protect such......parkways......their environs, the preserva*
Pursuant to the authority conferred by the act and for the purposes therein specified the councils of Philadelphia passed an ordinance on July 3,1912, section one of which appropriated certain described private property located outside and within two hundred feet of the parkway, a projected street extending northwestward from City Hall to Pairmount Park, which appropriation includes property owned by the plaintiff company declared to be necessary to protect the parkway. By an ordinance of January 16, 1913, the mayor was authorized on behalf of the city to enter into an agreement with the Bell Telephone Company of Pennsylvania by which the company should.convey in fee to the city for the consideration of one dollar three certain lots of ground at the northeast corner of North Seventeenth and Arch streets and abutting on the parkway, and the city should acquire by deed or condemnation proceedings the property outside of and adjacent to the parkway and adjoining the property of the telephone company, Arch street, Appletree street and property then owned by the city, which includes plaintiff’s property, and with certain restrictions convey the same and the lots agreed to be conveyed to the city by the company, except the small portion thereof included in the parkway, to the telephone company. The consideration to be paid by the company to the city was ninety per cent, of the cost of acquiring the property by condemnation.
The view we take of this case requires us to determine the single question whether the purpose or use for which the city intends to take the plaintiff’s land is a public use within the constitutional provision permitting its appropriation under the power of eminent domain. Under our former constitutions, it was declared that no man’s property can be justly taken from him or applied to public use without his consent and just compensation being made. The present Constitution, however, provides that private property shall not be taken or applied to public use without authority of law and without just compensation being first made or secured. The right, therefore, to appropriate private property in this State for a public use must now be conceded, and it is equally true that private property cannot be taken for a private purpose. The difficulty is in determining in the particulár case what is a public use for which such property may be taken. Primarily this is a question for the legislative department of the government, but ultimately for the courts. “Whether it be expedient or wise for the legislature to exercise this authority, to take property for public use,” says Mr. Justice Dean, in Philadelphia, Morton & Swarthmore Street Railway Company’s Petition, 203 Pa. 354, 362, “is purely a political question and one solely for the legislature. But whether the use to which it is sought to appropriate the property authorized to be taken is a public use is a judicial question for
Judge Cooley (Const. Lim., 7th Ed., 766) says: “The public use implies a possession, occupation and enjoyment of the land by the public at large or by public agencies...... It may be for the public benefit that all the wild lands of the State be improved and cultivated, all the low lands drained, all the unsightly places beautified, all dilapidated buildings replaced by new; because all these things tend to give an aspect of beauty,...... and gratify public taste; but the common law has never sanctioned an appropriation of property based on these considerations alone.”
In delivering his opinion in Bloodgood v. The Mohawk and Hudson Railroad Company, 18 Wend. 9, 65, Tracy, Senator, said: “Can the constitutional expres
We think this interpretation of the words “public use” is in accord with their plain and natural signification and with the weight of the best considered authorities. It furnishes a certain guide to the legislature as well as to the courts in appropriating private property for public use. It enables the state and the owner to determine directly their respective rights in the latter’s property. If, however, public benefit, utility or advantage is to be the test of a public use then, as suggested by the authorities, the right to condemn the property will not depend on a fixed standard by which the legislative and judicial departments of the government are to be guided,
Let us now turn to the case under consideration. Applying the doctrine that to constitute a public use for which private property may be appropriated there must be a use or right of use by the public it is apparent, we think, that the sections of the Act of 1907, authorizing the acquisition of private property outside a public park, parkway or playground, are not a constitutional exercise of legislative authority. It will be observed that these sections confer authority to appropriate and resell with such restrictions as may be prescribed property outside the lines of the parkway, and it is justified by declaring that it is done in order to protect the parkway and for “the preservation of the view, appearance, light, air, health or usefulness thereof.” The protection of the highway is the only “public use” to which the land is to be applied. The property is not to be taken and held by the city for any use for which a statute confers on the city the right to appropriate it. Saving the restriction contained in the conveyance, the city can exercise no control over it, and hence cannot use it for any purpose. The only possible “use,” therefore, which the city can make of the property is to impose restrictions on it or impress it with .an easement in the hands of the city’s vendee. As said by the learned court below, the act contains a feature entirely new in this State, and authorizes the taking by the city of property which is not to be used by the public as part of its park, parkway or playground but is to be sold in fee to private parties for private use after it has been charged with an easement for the protection of the public improvement. Prior to this legisla
A municipality has the unquestioned right to appropriate property for its highways, and it determines in the first instance the necessity for taking the property for the purpose. It may lay out its streets in the manner it deems proper. It may fix the width of and divide the highways as it thinks should be done. It is not compelled to use the ground appropriated for the highway solely for sidewalks and cartways, but may devote part of it to aesthetic purposes, and ornament and beautify it. This is a legitimate use of the land in connection with the primary purpose for which property may be appropriated for a public thoroughfare. It, however, contemplates occupancy or possession by the city of the land taken for the highway, and not that it shall be owned and in possesion of a private party. This construction of the powers of the municipality to condemn property will permit the city in the present case to carry into effect the purpose the learned trial judge says it has “to build a noble highway from the City Hall to Fair-mount Park which shall by its character beautify the city and increase its attractiveness and renown,” without invading the constitutionally protected right of private property.
Holding, as we do, that the use to be made of property located outside a public highway is not a public use for which private property may be taken by the city against
We are all of the opinion that so much of the Act of 1907 as authorizes and provides for the appropriation by cities of neighboring private property within two hundred feet of the boundary lines of property taken and appropriated for public parks, parkways, and playgrounds, and section 1 of the ordinance of July 3, 1912, and the ordinance of January 16, 1913, passed in pursuance thereof, are unconstitutional, null and void. It follows that the city is without authority under the act to appropriate the plaintiff’s land and resell it to the Bell Telephone Company or to any other party in pursuance of the ordinances passed for that purpose, and that the prayer of the plaintiff’s bill restraining such action by the city should have been granted. The plaintiff’s appeal must, therefore, be sustained, and thé defendant’s appeal be dismissed. The court below is directed to enter a decree declaring unconstitutional and void so much of the Act of June 8, 1907, P. L. 466, as authorizes cities to take and appropriate neighboring private property within two hundred feet of the boundary line of property appropriated for public parks, parkways, and playgrounds, and section 1 of the ordinance of July 3, 1912, and the ordinance of January 16, 1913, passed in pursuance and by authority of said act, and enjoining perpetually the city from appropriating plaintiff’s property outside of and adjacent to the parkway.
The decree of the court below, as thus amended, is affirmed. Costs in both appeals to be paid by the City of Philadelphia.