263 Pa. 338 | Pa. | 1919
Opinion by
In 1916 plaintiff, under foreclosure proceedings, became the owner of a tract of land in Tarentum Borough, lying between the Pennsylvania railroad and the Allegheny river, bounded on the east by property of the Tarentum Paper Mills Company and on the west by vacant land of the Philadelphia Warehouse Company. Along the western line of plaintiff’s land and on the property of the warehouse company was a private road leading across the tracks of the railroad company at grade, and connected with the streets of the borough. The road turned at an angle eastward across plaintiff’s
The taking of land for a public highway is a taking for public use: Smedley v. Erwin et al., 51 Pa. 445, 450; and where the use is a public one the question of the wisdom of the act is for the sovereign power of the State and not for the courts: Philadelphia, Morton & Swarthmore Street Railway Company’s Petition, 203 Pa. 354, 362; Penn Mutual Life Ins. Co. v. Philadelphia, 242 Pa.
The court also found the proposed location of the garbage incinerating plant was chosen after due investigation and on the advice of the borough engineer, that the site was approved by the court and the evidence did not .sustain the averments of the bill that the alley was to be opened under private agreement or for the benefit of private parties. The garbage plant when constructed is intended for the use not only of Tarentum Borough but also the contiguous Borough of Brackenridge and adjoining townships and citizens of these municipalities desiring to deliver garbage to the furnace for disposal. In addition to these facts, when we consider the road has been used by many citizens of the municipality as a means of access to the abutting properties, we find ample ground for sustaining the conclusion of the court below that the use for which the land is intended is a public one, based on apparent necessity, and accordingly -properly within the power of the borough.
Proceedings in equity to restrain the passage of the ordinance were improper for the reason Chapter 7, Article I, Section 9, of the Act of May 14, 1915, P. L. 393, entitled “An Act providing a system of government for boroughs, and revising, amending and consolidating the law relating to boroughs” and known as the “General Borough Act,” provides that the remedy of “any person aggrieved in consequence of any ordinance, regulation or act done or purporting to be done in. virtue of this act” shall be by application to the Court of Quarter Sessions
The decree of the court below dismissing the bill is affirmed, at costs of appellant.