Commonwealth ex rel. City of Reading v. Berks County Com'rs

• Decision Date: 11 May 1885
• Citation: 109 Pa. 214
• Parties: Commonwealth, ex rel. The City of Reading v. The Commissioners of Berks County.
• Court: Pennsylvania Supreme Court

109 Pa. 214

Commonwealth, ex rel. The City of Reading v. The Commissioners of Berks County.

Supreme Court of Pennsylvania.

May 11, 1885

March 4, 1885

1. In the year 1800, the heirs of the proprietaries of Pennsylvania, had no title, which they could convey, to land in a town, originally reserved for a public commons; nor to land not so reserved, in the absence of evidence that the same was the private property of the proprietaries.

2. The Act of February 17th, 1852, after reciting that certain land in the city of Reading was reserved by the proprietaries in the original town plat for public commons, directed the county commissioners, who held title thereto by a deed from John and Richard Penn, dated November 9th, 1800, to convey the same to the city of Reading. Upon bill for mandamus to compel the execution of such conveyance: Held, that the commissioners must make a deed as directed by the Act. In view of the Act of Divestiture passed November 27th, 1779 and the Act of April 10th, 1781, and in the absence of evidence that said land was the private property of the Penns, they had no title which they could convey to the commissioners, who held, therefore, at the sufferance of the state, subject to the will of the legislature.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT and CLARK JJ.

GREEN J., absent.

ERROR to the Court of Common Pleas of Berks county. Of January Term 1885, No. 340.

Petition by the Commonwealth ex rel. the city of Reading, for a writ of mandamus to compel the Commissioners of Berks county to convey a certain tract of land in said county, to the city of Reading.

The petition first recited the Act of February 17th, 1852, (P. L 65) on which it was based, and which recited, that when the city of Reading was originally laid out by the proprietaries of Pennsylvania, the tract in question was reserved by them as a free and public commons for the dwellers of said town that on November 19th, 1800, the Commissioners of Berks county purchased said tract from John and Richard Penn, late proprietaries, for the purpose of appropriating it to the use of said city as a public commons; and that the same had ever since been used for said purpose, except a small part sold by the said commissioners under an Act of Assembly; the Act then directed the county Commissioners to make a deed forthwith, of the remaining part of the tract, to the mayor, aldermen and citizens of Reading. After reciting said Act the petition further set out that the commissioners had refused to make a deed as required thereby, and prayed for a mandamus to compel them to execute the same.

The answer of the respondents set up, that the tract in question was conveyed to the Commissioners of Berks county November 19th, 1800, by John and Richard Penn, in fee, for valuable consideration and free from any trust; that under said grant and up to the date of this petition the commissioners of said county held visible, notorious, distinct, hostile and continued possession of said land; that while the Act of 1852 was as recited in the petition, yet the city of Reading had never before taken any steps to enforce its claim; that the Act of 1852 was unconstitutional as impairing the obligation of contract. To this answer the petitioners demurred; and the court in an opinion by SASSAMAN, J. entered judgment for the respondents on the demurrer. Thereupon the petitioners took this writ of error, assigning for error said action of the court.

Wayne Hayman and Richmond L. Jones (with whom was Geo. F. Baer ), for plaintiff in error.--County Commissioners can only hold land for the public use, that is, for the Commonwealth and under control of the legislature: Van Kirk v. Clark, 16 S. & R., 286; Dillon on Munic. Corp., § 562. Therefore, when the commissioners acquired deeds for the land in dispute, which had been already dedicated to public use as a square or commons, they simply acquired a quit claim from the Penns and quieted the title, not for the county of Berks nor for the city of Reading, but for the public, whose sovereign power is represented by the legislature; which, by the Act of 1852 directed the conveyance by the commissioners to the city of Reading. But even if the county of Berks had acquired a legal title to the land, the power of the Legislature to dispose of it is none the less clear. As between the municipality and the general public, the legislative power is supreme, and so it is in all cases where there are no private rights involved. If the municipal corporation holds the first title to the ground for public uses without restriction, the legislature may doubtless direct and regulate the purposes for which the public may use it: Dillon Mun. Cor., sec. 651; Van Ness v. Washington, 4 Pet., (U. S.) 232; Stormfeltz v. Manor Turnpike Co., 1 H., 555. Public streets, squares and commons, unless there be some special restriction when dedicated or acquired, are for the public use, and the use is none the less for the public at large, as distinguished from the municipality, because they are situate within the limits of the latter and because the legislature may have given the supervision and control of them to the local authorities: Dillon Mun. Cor., sec. 656; O'Connor v. Pittsburg, 6 H., 189; Phila. & Trenton R. R. Case, 6 Wh., 25. The legislature has undoubted power, in such a case as this, to change the trustee: Philadelphia v. Fox, 14 P. F. S., 169; Phila. v. Field, 8 P. F. S., 320; Baird v. Rice, 13 P. F. S., 489.

Henry C. G. Reber and Frank R. Schell, for defendants in error.--All the evidence shows that the land in question was bought for the county of Berks. The deed from the Penns is to the commissioners of the county and their successors in office for the use of the county of Berks. The county erected a jail on the ground, a court house and other county buildings are about to be built. In its opinion the court below says: " Before this petition was presented there was no evidence in the case that the city since its start as a borough in 1752, ever asserted any act of ownership or claim of legal right to this ground. Even now there is no evidence before us, except the...