130 A. 491 | Pa. | 1925
The easternmost side of Delaware Avenue, between Vine and South streets, is owned by the City of Philadelphia and is coterminus with low-water mark of the Delaware River. The legislature prohibited the appurtenant easements existing in the bed of the river from being attached to the land in the bed of the stream. The city, however, by deed from a former owner of the shoreline to low-water mark, became the owner of 130 feet of riparian rights on the west bank of the Delaware River between Race and Summer streets, and, under revocable *228 license from the Commonwealth, constructed Pier 11 from this riparian frontage, extending 540 feet to the pier-head line, and also a shorter pier known as Pier 11 1/2, extending some sixty feet into the water.
The Delaware River Bridge Commission, by resolution of August 19, 1921, in appropriating the property necessary for the improvement, described the rights, properties and structures to be taken. The description included the riparian rights and structures, piers 11 and 11 1/2, of appellant, within the points described from the shore, 542 feet, to a point in the pier-head line of the river, thence along that line 185 feet, thence back 539 feet to the shore line.
On October 19, 1921, the commission, by another resolution which recited the preceding one, acknowledged its inability to agree with the owners, lessees or occupiers on the compensation due for the rights taken, declared it was their intention, after sixty days, to acquire and take possession of the land, structures and rights described in the survey, and directed the secretary to give notice of such intention to those interested. This action followed the statute. Notice was given plaintiff in November, pursuant to this resolution. This was followed by an actual physical taking by the commission of a part of appellee's property. The commission, April 21, 1922, by resolution, rescinded the prior action, delimiting the quantity of land and rights taken. In the proceedings to assess damages, the court below refused to consider the rescission, because title to all the land and rights had passed and were vested in the Commonwealth; the taking was complete. An award in favor of the city followed, which was sustained by the court below.
The question for our consideration is whether the rescinding resolution was effective to delimit the taking; if not, was the taking damnum absque injuria? Further, it is contended the municipality's rights in the Delaware were not entered upon or used, as they were not necessary for the construction of the bridge, and *229 will be substantially the same after the bridge is completed.
The Commonwealth of Pennsylvania, in conjunction with the State of New Jersey, determined to provide better facilities for transporting persons and property over the Delaware River by means of a bridge. It is a great public project of inestimable benefit to both states, particularly to the two cities thus joined. Long before the effective legislation providing the ways and means to commence and finish the structure, there existed along the banks of the Delaware valuable easements termed riparian rights. These incorporeal rights have been generally defined as the right of access to navigable rivers in front of the abutting owner's lot and adjacent thereto, and the right to make a landing wharf or pier for his own use or the use of the public, subject to the general rules imposed by the legislature for the rights of the public: Dutton v. Strong, 1 Black 23, 31; Railroad Co. v. Schurmeir, 7 Wallace 272; Yates v. Milwaukee, 10 Wallace 497, 504; Weber v. Board of Harbor Commissioners, 18 Wallace 57, 64-5; Potomac Steamboat Co. v. Upper Potomac Steamboat Co.,
The license to build a wharf does not enlarge the easement or property in the riparian owner. The Act of April 8, 1868, P. L. 755, recognized wharves as the subject of sale, but the title of the Commonwealth in the bed of the river was not disturbed by the act. As an owner of riparian rights, the city had constructed the two piers and possessed valuable rights appurtenant to the easement above described.
When the legislature passed the enabling Act of July 9, 1919, P. L. 814, it stated its express will in unmistakable language that, notwithstanding prior decisions, it recognized conditions existing, and, considering our precedent legislation, it was the State's desire to compensate the persons named in the act for injuries sustained in the taking of all species of property. The legislature may not only be generous, but it must also be just. The different species of property liable to be taken as enumerated, the persons or bodies from whom taken, and the mandatory direction imposed by the act, should be examined. The Act of July 9, 1919, P. L. 814, after reciting the purpose in its preamble, arranging for a commission with enumerated powers, designating the things Philadelphia should do, provided, in section 5, as *231 follows: "For the purpose of carrying into effect the provisions of this act, the joint commission is hereby authorized to purchase in the Commonwealth of Pennsylvania such lands, structures, rights of way, franchises, easements, or other interests in lands, including lands under water and riparian rights, of any person, railroad, or other public or private corporation or municipality, necessary for the building of said bridge and the approaches thereto, upon such terms, prices, or considerations as may be considered by it to be reasonble and can be agreed upon between it and the owner or owners." Section 6 provides for condemnation if no agreement can be reached. What appellant seeks to do is to check the legislative mandate; the commission is merely an agent of the government, subservient to the law of its creation; it is not the government.
The dual ownership as well as relationship should be kept in mind. Here is the Commonwealth's money to be expended as it directs; it is not the money of an individual or private corporation, nor is the act an authority to a quasi public corporation to condemn. The city and others own riparian rights on the river; by license, the Commonwealth permits it to build on its ground (the bed of the river) wharves by means of which it may more fully exercise the right and duty of government for the upbuilding of the State. The city is not engaged in the shipping and docking business; what it constructs is for the use and accommodation of the public shipping, yielding a charge barely sufficient to meet the up-keep; "municipalities are supposed to act primarily for the public good, — not to earn dividends." Barnes Laundry Co. v. Pittsburgh,
Riparian rights are property rights for which compensation is guaranteed by the Constitution when taken. Their taking in connection with water companies under eminent domain has been frequently so held. As to lands or rights owned, such as these, our decision in Walnut Street Bridge Construction,
The "value" of the riparian rights and structures is a material part of the case. There the field is open for contest, but the tenure by which the riparian owner held its pier on the river bed, and the risks it ran of later having it removed by order of the State or its agent, are incidents affecting the value of the property in place; as long as the sovereign state fails to exercise its right of revocation, third persons will have difficulty in taking advantage of it: Ben Avon Borough v. Ohio Valley Water Co.,
The duty to determine what particular property was necessary to be acquired was imposed on the commission. They exercised that discretion and performed the duty by taking physical possession of plaintiff's property and destroying part of it. May they subsequently take part of these rights and return the remainder to the riparian owner, or may they abandon the entire proceeding? No rule has been laid down which will prevent municipal corporations from receding from a proposed condemnation before the landowner has obtained final judgment for his damages, unless the corporation meanwhile has actually taken possession: Speer v. Monongahela Railroad Co.,
Appellant says the commission cannot use the riparian rights thus acquired, and, though it must take a part of them it should not be compelled to pay for the taking. This is a novel proposition, without merit. *235
A question has arisen as to whether the State could resell so much of the rights acquired not necessary at this time for the bridge. Though it may not be possible to sell, there is nothing to prevent the Commonwealth from leasing for a term of years or until needed in connection with the bridge.
The case was carefully tried in the court below. The learned president judge was extremely careful in his presentation to the jury; his charge was free from error.
The judgment is affirmed.