184 A. 23 | Pa. | 1936
Argued January 21, 1936. The only question is whether the appellant city may withdraw and discontinue condemnation proceedings in the circumstances disclosed by the record.
The right of eminent domain is an attribute of sovereignty, inherent in the State, to be exercised subject to applicable provisions of the Constitution and in accord with statutes regulating procedure. It is generally exercised by the State, or by agencies to which the State delegates the power, such as municipal corporations and others sometimes designated quasi-public corporations.
It has been held that, in the absence of statute providing otherwise, the State may discontinue such proceedings at any time before, but not after, taking possession (Phila. v. Com.,
This proceeding began by ordinance of the City of Reading, adopted December 7, 1927, for the appropriation of certain land belonging to the appellees "for the use of the Bureau of Water." Viewers were appointed and filed their report in October, 1933. The property owners appealed from the award and the case is still pending below. In 1935, pursuant to an ordinance repealing the condemnation ordinance, the city filed a petition for leave to discontinue the proceedings, setting forth, however, that the property owners were "entitled to all costs upon the proceedings, including attorney's fees to be fixed by the court" and asking that they be assessed. By answer, the city's right to discontinue was denied on the ground that the period allowed by the statute for discontinuance had expired. As the city was exercising a delegated right of sovereignty, it was necessarily required to do so on the terms on which the State conferred the power to condemn. Discontinuance of eminent domain proceedings by cities of the third class appears to have been regulated for the first time by the Act of May 23, 1889, P. L. 277, article XIV, section 7, *223
providing that "In case any such city shall repeal any ordinance passed, or discontinue any proceedings taken, providing for any of the improvements mentioned in the first section of this article, prior to the entry upon, taking, appropriation or injury to any property or materials, and within thirty days after the filing of the report of viewers assessing damages and benefits, the said city shall not thereafter be liable to pay any damages which have been or might have been assessed, but all costs upon any proceedings had thereon shall be paid by said city." This section was reënacted verbatim in the Third Class City Law of 1913, P. L. 568, article XIV, section 7, but by the Act of 1919, P. L. 310, section 36 (53 PS section 11497) there was added to the costs "attorney fees to be fixed by the court on behalf of the owner or owners." The most recent delegation of power available to the appellant, with limitations on its exercise, is contained in the Third Class City Law, approved June 23, 1931, P. L. 932,2 article XXVIII, sections 2801 to 2848, 53 PS sections 12198 et seq. Section 2847 provides: "Discontinuance of Proceedings. — If any city shall repeal any ordinance, or discontinue any proceeding, providing for any of the improvements mentioned in this article, prior to the entry upon, taking, or injury to any property or materials, and within thirty days after the filing of the report of the viewers assessing damages and benefits, the city shall not be liable to pay any damages which have or might have been assessed, but all costs upon any such proceedings shall be paid by the city, including attorney's fees to be fixed by the court on behalf of the owner or owners." It is clear that the power to discontinue the condemnation proceeding, which could be brought only on terms allowed by the legislation, was conditioned as to the time in which a *224
discontinuance might be had; it must be done "prior to the entry upon, taking, or injury to any property or materials, and within thirty days after the filing of the report of the viewers assessing damages and benefits . . .," and, if so done, the court shall determine the costs and attorney's fees to be paid. A comparison of the various acts since 1889 with the prior law on the subject shows that for cities of the third class the legislature diminished the scale of reimbursement theretofore allowed. When the change was made, we must assume, the legislature was cognizant of the prior law, as declared for example, in the Moravian Seminary's Case, 153 Pa. at page 588, allowing "all the costs and expenses to which plaintiff has been subjected by reason of said condemnation proceedings"; see, too, Sensenig v. Lancaster Co.,
Franklin Street,
The order appealed from is affirmed.