250 Pa. 257 | Pa. | 1915
Opinion by
Appellant owns a lot of ground wholly within the lines of the proposed parkway, upon which was erected many years ago a three story dwelling house. In response to popular sentiment, based upon the spirit of civic pride, the municipal authorities laid the foundation for this comprehensive and costly public improvement in 1903. At that time the original ordinance was passed to place the parkway upon the city plan, and this was followed by an amending ordinance a year later. Following these ordinances, the department of public works in 1904 through its board of surveyors by resolution in due form directed the plotting of the parkway upon the confirmed plan, and this was accordingly done. Since that time the city by condemnation or purchase has acquired title to various properties within the lines of the confirmed plan and has expended upwards of $5,000,000 in paying for the same. It is therefore committed to this improvement, which it intends to complete at its. own convenience, without regard to the equitable or legal rights of abutting owners whose properties lie within the lines of the parkway or adjacent thereto. The city asserts the right to thus proceed on the theory that until councils pass an ordinance to open the boulevard, a property owner, no matter what injury he may have sustained, does not have the right to have his damages assessed; and this upon the ground that such action is necessary to constitute a taking of property for public use. This is the general rule, but let us see whether it applies to the present case. Here some properties have already been taken by condemnation; some have been acquired by purchase; some buildings have been torn down; some
It now remains to be determined how much of what has been said applies to the facts of the present case. The construction of the parkway is not an ordinary or usual undertaking on the part of the city; it is unusual and extraordinary. This great boulevard is not intended for the ordinary purposes of commercial travel. Its purpose is to add charm and beauty to the city and to give pleasure to its population. It is a defined public way within specified and limited boundaries. It cannot serve the purpose for which it was intended until completed. A completion in part would serve no useful public purpose and moneys expended on the unfinished undertaking would be deemed wasted. The parkway must therefore be regarded as one entire public improvement and it is important to keep this thought in mind in discussing the principles of law here involved. What then is the legal status of appellant in the present case? Our Constitution provides as follows (Art. XYI, Sec. 8) :
“Municipal and other corporations and individuals invested with the privileges of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction.”
There are other provisions to the same general effect. The city is invested with the privilege of taking private property for the construction of its highways and public improvements. It has the power to take the property of appellant for this purpose and the only question here is whether what it has already done amounts to a taking of or injury to the land in question. It has not either paid or secured compensation for the land taken, if there was a taking, as the Constitution requires. The constitutional mandate is that there shall be “just compensation for property taken, injured or destroyed,” and
“As between the city and the land owner no right of action exists......for the recovery of damages until some act done, or notice or demand made, affecting, or relating to, the possession or appropriation of the land.”
Again, in Whitaker v. Phœnixville Borough, 141 Pa. 327, Mr. Justice Green in discussing the Volkmar Street case, said (p. 332):
*264 “We decided that the right of action to have damages assessed to the owner did not commence until the opening of the street or the doing of some unequivocal act by the city which indicated that the possession of the owner was about to be disturbed.”
The plain inference from this language is that if the city did some unequivocal act evidencing an intention to open, followed by actual work done on the projected street, the right to compensation under proper circumstances might accrue even if councils had failed or neglected to pass an opening ordinance. In the very nature of things such cases would be exceptional and we only mention the excerpts above quoted to show that the principle has been recognized as applicable when the facts warrant its application. The present case belongs to this exceptional class. Here we have not one but a series of unequivocal acts covering a period of years and all evidencing the intention of the city to open and complete the parkway. In furtherance of the intention to open and complete the undertaking lands have been condemned under the power of eminent domain, properties purchased, improvements made and large sums of money expended. The city is just as irrevocably committed to the improvement as if the ordinance to open had been passed. The termini of the boulevard are definitely fixed by City Hall at one end and Fairmount Park at the' other. The courses and distances are marked on the ground and at some points the parkway is open to public use. Buildings have been torn down at each end and a large amount of work done looking to final completion. As hereinbefore stated the parkway must be regarded as one entire improvement. It is either this or nothing. The city has committed itself to this improvement by its acts just as much as if councils had declared their intention by passing an ordinance to open. The law looks to the substance and not to the form. It is futile to argue that councils have not committed the city to the opening when they have already appropriated millions of dollars
Now a word as to the situation of abutting owners whose properties are affected by the proposed improvement. The municipal arm of the city has lain upon all properties within the lines of the parkway, with such restrictions and limitations as are implied thereby, for a period of• about twelve years. New buildings cannot be erected, nor can valuable improvements be made without risk of loss. Rental values have been depreciated and general market values seriously affected. Certainly this condition of affairs should not be permitted to continue indefinitely without redress to property owners who are injured thereby. More especially is this true when the Constitution guarantees to the private owner “just compensation” for property so “taken, injured or destroyed.” The facts show that appellant has suffered grievous injury and should be compensated. If so, why not now? The only answer is that the city has not formally ordered the opening, and therefore there has been no taking within the meaning of the law. Our reply has already been indicated. What the city has done is equivalent to notice that the parkway will be opened and completed and that the lands required for this purpose will be appropriated under the power of eminent domain unless otherwise acquired. Indeed as we view it the city has committed itself to the opening by a series of acts more expressive of its fixed purpose than could be indicated by a resolution to open without anything more. Our conclusion is that under the facts of this case the property of the appellant has been injured and what the city has done constitutes a taking in the constitutional sense.
It is argued, however, that even conceding a taking within the reason and spirit of the rule, the statute of limitations is a bar to the claim of appellant. With
Order reversed, petition reinstated and record remitted with direction to appoint viewers as prayed for. Costs of this appeal to be paid by appellee.