Vernon Park, Appeals, Nos. 266-270

Appeals, Nos. 266-270 | Pa. | Jul 12, 1894

Opinion by

Mr. Justice Mitchell,

The land over which this controversy arises was taken by the city of Philadelphia for a public park, under the authority of the act of May 13,1857, P. L. 489, which enacts that the courts shall appoint a jury to assess damages in such cases, “and the proceedings thereupon shall be the same and with like effect as upon the assessment of damages for the opening of streets in said city.” The fundamental question on which this case must turn is the construction of that statute; does it mean that proceedings in park cases shall until specifically and expressly altered be the same as in street cases under the law as it was in 1857, or as the law may be in regard to streets from time to time when park proceedings are begun ?

There can be little, doubt as to the answer'to this question. The taking of land for a public park is in substance the same as the taking of land for a street. It is an exercise of the same power of eminent domain; at the discretion of the same municipal body; for the same public reasons, the general benefit of the citizens; for a closely analogous public use; and the effect upon the property rights of the private owner is precisely the same. There is no good reason why the proceedings in regard to his compensation should not be the same, and it was the manifest intent of the legislature to establish a uniform system for both. The vesting of a general right of eminent domain for park purposes in the city of Philadelphia, to be exercised at its own discretion was however an unusual feature in legislation. The act of March 29, 1849, P. L. 259, had authorized the commissioners of any incorporated district in the county of Philadelphia to purchase one or more squares of ground to be kept unbuilt upon and open for the public use forever, and the consolidation act of February 2, 1854, sect. 39, P. L. 42, had provided that it should be the duty of councils “to obtain by dedication or purchase” an adequate, number of squares, and to lay out and maintain them as open public places for the health and enjoyment of the people forever. But the power to take by eminent domain was new, and park cases were likely to be rare in comparison with street or'road cases in which the jurisdiction and proceedings were familiar. The legislature took the easiest and most natural way to prescribe the same method for both, by enacting that the former should be “ the same and with like effect” as the latter. The proceedings in street cases were set up as the model or standard for two things desired and intended to be made alike, and necessarily when a change was thereafter made in the standard it involved a like change in everything that was directed to be conformed to it. If any further authority is needed for this construction of the statute, it will be found in the principles laid down in the analogous case of Kugler’s Appeal, 55 Pa. 123" court="Pa." date_filed="1867-03-30" href="https://app.midpage.ai/document/kuglers-appeal-6232966?utm_source=webapp" opinion_id="6232966">55 Pa. 123.

When therefore the act of May 26, 1891, P. L. 116, gave to any party aggrieved an appeal in street cases, within thirty days after a decree of confirmation of the viewers’ report in the quarter sessions, it gave the same right in all other cases where the proceedings were directed to be the same, including park cases under the act of 1857.

At the time of the passage of that act there was no appeal to 'a common law jury in road cases, and the constitution of 1873, in sect. 8 of article 16, having declared that there should be, the legislature by the act of June 13, 1874, P. L, 283, expressly provided an appeal for all eases of property taken, in which the assessment of damages should be by viewers or otherwise than upon a trial in court. The appeal under this act must be taken 'within thirty days of the filing of the report, and it is argued that this is the only act giving an appeal in park cases, and therefore the appeal here was too late. The act of 1891, supra, mentions only “damages for the opening, widening or change of grade of any street, road or highway,” and the argument is that it does not apply to park cases, or repeal the act of 1874 in relation thereto; that the act of 1874. covered the general right of appeal in seve'ral classes of cases, while the act of 1891 relates to the right in certain limited and prescribed cases only, and does not extend to park cases which are left under the act of 1874. This argument however runs directly contrary to thé whole'construction of the act of 1857. That act declared that the proceedings under it should be “ the same and with like effect ” as in street cases, and the necessary construction was, as'already shown, to make the latter the exemplar to which the others should conform from time to time as changes might be made. If there were no act of 1874, no question could be made; indeed it is conceded by appellees, that the appeal under the act of 1891 would extend to proceedings under the act of 1857. Why then does the act of 1874 prevent that result ? There is no conflict between the acts of 1874 and 1891, nor does the latter involve the repeal of the former. Both are affirmative acts, and in furtherance and extension of the remedy. Under the act of 1874 the appeal is given from “the ascertainment of the damages or-the filing a report thereof in court,” and must' be taken within thirty days “ and not afterwards.” Under the act of 1891 the appeal is not from the ascertainment of the damages or filing a report thereof at all, but from the decree of confirmation by the court of quarter sessions. The two systems are not irreconcilable but may run together with entire harmony. The act of 1874 gives an appeal from the award itself, of which the party appealing may avail himself at once without waiting for the action of the court, and must avail himself if at all within thirty days “ and not afterwards ” under that act. The act of 1891 gives no appeal at all from the award, but al- ■ lows “ any party aggrieved by the said decree of confirmation to appeal therefrom ”; a different appeal, at a different stage of the case, and not necessarily to the same party. The legislature would seem to have regarded the remedy at the earlier stage as insufficient and accordingly provided an additional one at a later period. Both are in furtherance of the same right to ' a jury trial which the constitution secures, and both are open to the parties that they may make their choice.

Judgment reversed, appeal reinstated,' and procedendo awarded.