146 A. 557 | Pa. | 1929
Argued January 30, 1929. Plaintiff prior to 1926 became the owner of a large tract of land lying between Market and Pierce Streets, in Kingston, Luzerne County. A public highway on which the land, now divided into lots, fronts, extended from Market Street by bridge across the Susquehanna River to Wilkes-Barre. The county commissioners, believing the bridge insufficient to accommodate existing travel, petitioned the court of quarter sessions to reconstruct it. The grand jury on January 31, 1919, approved the project and the court below gave a qualified approval without committing it "to any suggested plan or detail of construction, all of which will be determined without haste and after full deliberation." In 1926 a contract was let and approved by the court for erecting the bridge and approaches. The latter extend from the *145 river bank on Market Street into Kingston 450 feet and adjoin appellant's land 370 feet.
The elevation of the approach at the river bank, the borough limits, is 20 feet and runs out on a regular grade to nothing on Market Street. The average elevation in front of appellant's land is about six feet. Market Street, originally fifty feet wide, is now 93 feet and the approach covers the entire width along appellant's land.
The decorative or ornamental projection outside of the regular lines of the approach extends in a circle into appellant's land an extreme width of forty-nine and one-half feet from the general line, gradually reducing to nothing at the general line, and is one hundred and forty feet long. The extreme width of the approach at the farthest point of the circle, including the width on the other side, is about two hundred feet. A railing or balustrade is erected along the property lines as a protection to pedestrians; it also prevents ingress and egress to and from the land facing it, now below the grade of the approach, and deprives Kingston Borough of a connection with a street along the river, also below grade. The commissioners proceeded with the work until July, 1928, when this proceeding was instituted to enjoin further construction, particularly of certain parts of the bridge.
The reasons given for the injunction were: the county was attempting to take land without acquiring title thereto or without lawful appropriation or condemnation thereof; there was nothing of record to determine the part of appellant's land taken, though entry thereon had been made; the new bridge contained decorative features not a part of the bridge and not necessary for public travel or use, but merely adding beauty and ornamentation, and for that purpose the county took a large piece of appellant's land, for which taking there was no warrant in law; the bridge or street was of greater width than authorized by law; and, in laying out and *146 building the approach, its grade was so elevated through the Borough of Kingston as to cut off free communication with an important public street necessary for public travel, and with the land of appellant. Other questions raised by this appeal become immaterial and resolve themselves into ones for damages if it is found the county can take the land in question.
The court below, after the hearing, dissolved the injunction and dismissed the bill.
The power of a municipality or a quasi-municipal corporation to appropriate land for roads and bridges or other public improvements must be found in some enabling statute. "The right of eminent domain __________ is an incident of government and exists in municipal or other corporations only as direct authority from the government by act of assembly may be shown therefor. The exercise of a certain function of municipal government to which the acquisition of real property is necessary will not of itself give rise to the right of eminent domain to condemn property. __________ Acts of assembly granting this right must be construed strictly. The language of the act should be clear and unmistakable, and questions of doubt should be resolved against the existence of this right": Philadelphia's Petition,
We do not have a record of what took place before the court of quarter sessions, the county commissioners or the grand jury; only a very meagre outline is presented and it does not show the authority pursued. We can only decide the case from this record and statements made in the argument as they supplement the record. Ample power to condemn or appropriate land for the construction of bridges and approaches is lodged in the county under the Act of April 29, 1891, P. L. 31, as amended, aided by the Act of February 14, 1907, P. L. 3, and the Act of the same year, P. L. 523; see Carrere v. Schmidt,
The words "take and appropriate," or others of similar import, in eminent domain statutes, contemplate an orderly and regular proceeding by the authorities in whom the power is lodged. It has in view a precedent resolution, ordinance or other affirmative act, defining the scope and extent of the proposed taking, with the purpose for which it is to be exercised. Members of council or the mayor, or the county commissioners individually or collectively, cannot in an informal manner take the action necessary to complete a lawful appropriation. Formality of procedure is here essential just as in the case of condemnation by quasi-public corporations: Foley v. Beech Creek Extension R. R. Co.,
It was conceded there is no resolution of appropriation or taking and no plan or map of the property has been made or filed, and there is, therefore, nothing of record to show to what extent appellant's rights have been interfered with. It has, however, permitted the bridge to be so far constructed that it would be inequitable and unjust to grant the relief prayed for; we do not, on the other hand, wish to be understood, in the order to be made, as countenancing such procedure generally in the construction of public works. A modification of the decree will be suggested which will preserve all rights and place a modicum of legality on the project.
Complaint is separately made that no authority exists for the appropriation of the land necessary for the decorative feature of the bridge, and that the Acts of June 13, 1836, P. L. 551; June 7, 1907, P. L. 452; April 6, 1921, P. L. 111, and April 13, 1927, P. L. 184, limit the width of highways. This is not an effort to build a highway, but to construct an approach with an enlargement that may become a matter of vital importance in the use and operation of the bridge. We find no limitation in the acts referred to as to the width of bridges or their *149 approaches; though the latter may be part of the highway, the taking for it is under authority to construct a bridge. The fact that the bridge at this point may be of a greater width than that allowed for highways is not determinative of the question as to the building of these extensions.
Municipalities plan for the future and, unless specifically limited, are bound only by factors of reasonableness. Their projects may reasonably include such useful, ornamental and artistic designs as are consistent with progressive architectural demands and do not unnecessarily intrude on private ownership. The county under the various acts had authority to elevate and lengthen the approach to the bridge into the Borough of Kingston and it also had power to enter and occupy sufficient ground "for approaches," without any attempt at a definition or restriction of what would constitute an approach. Counties may, within reason, appropriate such lands as may be deemed reasonably necessary for art and decoration. What has been done here is not unreasonable, is not such an abuse of power as would cause a court of equity to stop it even if not started.
Kingston Borough petitioned to intervene to protect the highways therein. Equity Rule 25 permits any person having an interest in pending litigation to intervene at any stage of the proceedings. Generally speaking, the question of intervention is a matter within the sound discretion of the court below, which ordinarily will not be interfered with on review, unless there is a manifest abuse of discretion: Bole v. Belden Transmission Co.,
Where there is a conflict of authority between a borough and a county, ordinarily that of the county must be taken to be superior unless the legislature determines otherwise. It is the larger unit of government under the state and comprises within it the borough. Its powers and duties generally extend to, cover and benefit the land and people in the borough as well as those within the larger unit. When charged with a duty, it cannot be impeded in its acts by lesser units of government because of a conflict of powers. The superior right must rest in somebody, — here it is the county. When it projects the bridge into Kingston and its work interferes with the highways there, the Borough of Kingston must accommodate itself to that interference. Of course the county may not construct public works in such a manner as permanently to shut off access from transverse highways in the borough; these highways, brought up to a proper grade so as to make them safe for public travel, may be joined to the approach regardless of the balustrade or railing, which must be removed. The borough cannot be denied this right.
Likewise it is beyond the power of any municipality permanently to close its highways to the use of the abutting property owners; as well might the City of Philadelphia place a balustrade or railing close to the property line on Broad Street from Chestnut to Walnut *151
forbidding property owners the privilege of entering the street in any manner. Any unreasonable and unauthorized obstruction of a street is a nuisance, per se, regardless of whether the fee of the street is in abutting owners (44 C. J. 1006; Kelly v. Com., 11 S. R. 345; Thomas v. Inter-County St. Ry.,
It has been stated that the county in taking the land proceeded under the supposed authority of the City of Wilkes-Barre. This is a rather novel suggestion, for there is not a line of evidence to show that the City of Wilkes-Barre ever condemned anything. Certainly the resolution authorizing its engineer to appropriate appellant's land is not sufficient. From this record, it appears that the City of Wilkes-Barre had no rights therein. Appellants had never parted with title nor had they been paid damages. It would be an entirely new principle that one corporation could justify its right to take land because another corporation had started condemnation proceedings that had never been finished and by so doing deny to the owner the compensation safeguarded by the Constitution. Appellants in this respect are in a position as though the City of Wilkes-Barre had not acted and are entitled to the full compensation allowed by law.
We affirm the court below in denying an injunction. Defendant has not been guilty of laches with respect to the land necessary for decorative features. It was the subject of discussion until a short time before the bill was filed and this was the principal complaint. We modify the decree so as to sustain appellee's contention as to these features unless the county commissioners will adopt and file resolutions of appropriation for the land occupied, setting out with sufficient certainty their purpose, with a description of the land taken therefor. This, counsel for the county have agreed to do. The bill will be reinstated for the purpose of carrying out the decree of the court below as modified. Appellant may have viewers appointed under the Act of April 29, 1891, P. L. 31, to ascertain its damages as related to the condition of its land before and after the taking, indicated by the construction on the ground. As thus modified, it is affirmed, costs of this proceeding and that in the court below to be paid by the County of Luzerne. *153