Adams v. City of New Kensington

• Decision Date: 25 May 1953
• Citation: 97 A.2d 354,374 Pa. 104
• Parties: ADAMS et al. v. CITY OF NEW KENSINGTON (two cases).
• Court: Pennsylvania Supreme Court

97 A.2d 354

374 Pa. 104

ADAMS et al. v. CITY OF NEW KENSINGTON (two cases).

Supreme Court of Pennsylvania.

May 25, 1953

Rehearing Denied June 26, 1953.

Eminent domain proceedings. The Court of Common Pleas Westmoreland County Nos. 555 and 556, August Term, 1950, John M. O'Connell, J., rendered decrees, and city appealed. The Supreme Court, Nos. 67, 68, March Term, 1953, Arnold, J held that where city enacted ordinance in collaboration with and according to plan of, Department of Highways to open new city street and to relocate state highway on such street, city alone was liable for damages due to exercise of power of eminent domain.

Affirmed as modified.

Harry W. Crum, City Solicitor, New Kensington, Carroll Caruthers, Greensburg, Anthony J. Bonadio, Asst. City Solicitor, New Kensington, for appellant.

Vincent R. Smith and James Gregg, Greensburg, P. K. Jones and Wayne R. Donahue, New Kensington, for appellees.

Before STERN, C. J., and STEARNE, JONES, CHIDSEY, MUSMANNO and ARNOLD, JJ.

ARNOLD, Justice.

This is an appeal from a verdict of a jury assessing damages to the plaintiffs for the taking of their lands by eminent domain.

By virtue of ordinances Nos. 213 and 214 the City of New Kensington approved and established widths, lines, grades, etc., appearing on the plan of the Department of Highways of the Commonwealth, showing a proposed improvement for a new street, a part of the state highway route passing over a bridge between Westmoreland and Allegheny Counties. The ordinances further adopted the plan as the official city plan for said street, approved and opened the same as a public highway by a relocation of said state highway route, and provided for the removal of structures, for which the city assumed responsibility.

The ordinances were passed in connection with the building of a new bridge across the Allegheny River under the Act of June 4, 1943, P.L. 883, 36 P.S. § 3201. Under this Act the bridge on the Allegheny County side was to be located in the borough of Tarentum, but the situs of the other end of said bridge was merely fixed as the County of Westmoreland. The two ordinances in question placed the bridge in New Kensington.^[1]

When the ordinances were enacted a plan of the State Highway Department for the building of the road and approach to said bridge was filed with the city council and adopted. The plan provided for the building of the street or approach to said bridge through the lands of Charles Adams, William Adams and J. Fred McKean, and through the lands of Charles Adams and William Adams.

These proceedings resulted in two petitions for a view, one by Charles Adams, William Adams and J. Fred McKean (Appeal No. 67 March Term, 1953), and the other by Charles Adams and William Adams (Appeal No. 68 March Term, 1953). These resulted in awards to the respective plaintiffs; the city appealed to the court of common pleas; and the two appeals were tried together. During the trial it developed that there was an outstanding interest in the respective tracts in the trustee in bankruptcy of Daniel J. Burns, deceased. The plaintiffs having obtained a deed for the interest from the widow of Daniel J. Burns, had assumed that they had the entire title.

The plaintiffs and the city then stipulated: ‘ It is stipulated and agreed by and between the parties that Charles and William Adams are the sole owners of and have the sole right of action to an undivided twelve-thirteenth in a larger tract of land known as the Adams and Adams tract; it is also stipulated and agreed by and between the parties Charles Adams and William Adams and J. Fred McKean are the sole owners and have the sole right of action to damages of an undivided seven-eights interest in a smaller tract of land known as the Adams, Adams and McKean.’ (Italics supplied).

The fact that the title of the Burns interest was not in the plaintiffs was not raised by the city until it filed an answer to the plaintiffs' complaint. However, in the view we take of this, the matter is purely academic, for after verdict and before judgment the plaintiffs did acquire the Burns title from his trustee in bankruptcy. It has been held that in a case of condemnation or eminent domain an amendment may be allowed including lands purchased pending such proceedings. Boyd v. Negley, 40 Pa. 377, 384. The defendant here, as in the Boyd case, was certainly not hurt by the amendment, for the reason that the value of the entire interest both of Burns and of the plaintiffs was fixed by the jury, under the stipulation aforesaid. The court, in appeal No. 67, accepted the verdict of the jury that it ‘ * * * [found] Damages $50,000 Total $46,153.85 at (12/13 of $50,000) Detention $2,769.24’ ; and as to No. 68 that it ‘ * * * [found] Damage $5,000.00 (7/8 $4,375) $262.50 Detention.'

The appellant raises the following questions:

(1) Could the City condemn the lands of the petitioner after they had been condemned by the Commonwealth? Where a city enacts an ordinance in collaboration with the Department of Highways according to its plan, the effect of which is to condemn the property, the city alone is liable for the damages due to the exercise of the power of eminent domain. Ashley Borough Appeal, 348 Pa. 322, 324, 35 A.2d 74; Glen Alden Coal Co. Case, 350 Pa. 177, 180, 38 A.2d 37; Henry Shenk Co. v. City of Erie, 352 Pa. 481, 485, 486, 43 A.2d 99. Of course if the Commonwealth had entered the lands without the intervention of the city, the liability for damages would have been on the Commonwealth. However, the city did intervene, it adopted the plan, passed the ordinances, and made its own plans, which were offered in evidence as Exhibits 17 and 19 to show the extent of the improvement as affecting the property in question.

Therefore the question which the appellant raises must be resolved against it. In addition, the city was estopped from denying the liability assumed by its own ordinance. Ervin v. City of Pettsburgh, 339 Pa. 241, 250, 14 A.2d 297; Breinig v. Allegheny County, 332 Pa. 474, 485, 2 A.2d 842.

(2) Could the city condemn any lands of the petitioners? This must be answered in the affirmative for the reasons hereinbefore set forth, and because the alleged condemnation was not only under ordinance No. 213, but also under ordinance No. 214, which was pleaded by amendment.

(3). Could the owners of an undivided interest in the land maintain these cases without the joinder of the owner of the other undivided interest? This question is raised because of the fractional interest of Daniel J. Burns outstanding at the time of the trial. It must be resolved against the appellants both because of the stipulation and because of the fact that the Daniel J. Burns interest was acquired by the plaintiffs as previously explained, so that the plaintiffs, after verdict and before judgment, were the indisputable fee simple owners of the land. On the question of the necessity for all tenants in common to appear as parties plaintiff, this Court said in Reading Railroad V. Boyer, 13 Pa. 497, 500:

‘ But although they may join, where there are several interests, either in common and in present existence, or some of them in future and expectancy, yet it follows not that they must. Because, one might be baulked by the obstinacy of the others,

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