Commonwealth v. Alburger

• Decision Date: 28 April 1836
• Citation: 1 Whart. 469
• Parties: THE COMMONWEALTH v. ALBURGER and Others.
• Court: Pennsylvania Supreme Court

1 Whart. 469

THE COMMONWEALTH v. ALBURGER and Others.

Supreme Court of Pennsylvania.

April 28, 1836

1. The North-eastern square of ground in the city of Philadelphia now called " The Franklin Square," was dedicated to public use by William Penn at the foundation of the city; so that neither he nor any person succeeding to his title, as Proprietary, could afterwards grant the exclusive use of any part of the same to any person or corporation. A grant therefore, of a part of the Square in 1741, to a religious Corporation, for the purpose of a burying ground, was held to be void.

2. A grant will not be presumed of a part of a public square or street, from the lapse of time, so as to bar an indictment for a nuisance.

3. Copies of old maps and plans of the City of Philadelphia, in the office of the Surveyor General, and certified by him held to be admissible in evidence, on a question of the title to an open square in the city.

4. The " list of first purchasers," with the advertisement annexed, held to be admissible in evidence on the same question.

5. Historical books which have been generally received as authentic, are admissible as furnishing evidence of remote transactions.

IN the Mayor's Court of the City of Philadelphia, at June Sessions, 1834, an indictment was found against John Alburger, William Bruner, and thirteen others, for a nuisance in the erection of a certain fence and wooden building upon a part of the north-eastern public square in the city of Philadelphia, called the Franklin Square.

This indictment having been removed by certiorari, into this Court, the cause came on for trial at a Court of Nisi Prius, held by the Chief Justice, in the city of Philadelphia, on the 14th of March, 1836.

It was alleged on the part of the Commonwealth, that the square of ground in question was given to the city of Philadelphia for public use, by William Penn, the Proprietary of Pennsylvania at the foundation of the city.

The defendants were the Trustees, Elders, and Deacons of " The German Reformed Congregation in the city of Philadelphia," and claimed the exclusive right to the occupation of a portion of the said public square, under a warrant from Thomas Penn, the then Proprietary, dated the 18th of June, 1741, a survey made in December, 1763, and a patent granted in the same month and year.

On the trial, the Commonwealth gave in evidence certain ancient documents and printed books, after objections made on the part of the defendants, which were overruled by the Court viz:

1. A certified copy from the Surveyor General's office, of a plan or map entitled " A portraiture of the City of Philadelphia, & c., by Thomas Holme, Surveyor General," published in London about the year 1683.

2. A certified copy from the same, of the " List of first purchasers," with an advertisement subjoined, upon the situation and extent of the city of Philadelphia.

3. A certified copy from the same, of an ancient general plan of the city, remaining in the Surveyor General's office.

4. A certified copy from the same, of Reed's map of the city.

5. A warrant to the German Lutheran Congregation, for a lot of land bounded eastward by " the public square," dated April 16th, 1776; and a patent for the same lot to the same, dated August 25th, 1781.

6. Part of a note to the 2d vol. of the Laws of Pennsylvania, by Charles Smith, Esq. containing an account of Holmes's plan, and the list of first purchasers.

7. The book of minutes of The Board of Managers of the Pennsylvania Hospital, containing certain instructions from the Proprietaries to the Governor of Pennsylvania, the remarks of the Board of Managers thereupon, and their letter to Thomas Hyam and Sylvanus Bevan, dated 2d of 7 mo. 1752, in answer thereto.

8. A printed book called " Some account of the Pennsylvania Hospital," dated in 1754, containing the same documents.

In the course of their testimony, the defendants offered in evidence the following documents, which were objected to on the part of the Commonwealth; and the Court refused to admit them viz:

1. A paper purporting to be certified by Peter Zachary Lloyd, Clerk of the General Assembly, and to be a copy of a report made by the Committee to whom was referred a memorial of the Trustees, Elders, & c. of this church, presented in 1782.

2. A paper purporting to be the copy of an opinion of William Bradford, Esq. on the right of the defendants to the occupation of the ground; dated the 3d of February, 1783.

A variety of evidence was produced on each side, relating to the original plan of the city, the alterations therein, and the acts and doings of the corporation of the city, and the religious corporation represented by the defendants.

The defendants finally submitted to a verdict being taken against them on the charge of the Chief Justice in favour of the prosecution on all points, with leave to assign their reasons for a new trial, in order to have the full benefit of their defence in bank; where the cause was to be considered on the whole evidence.

Several reasons for a new trial were filed on the part of the defendants, relating--

1st. To the admission or rejection of testimony.

2d. To the charge of the Court.

The questions arising upon these points were elaborately argued by Mr. W. M. Meredth and Mr. J. R. Ingersoll, (with whom was Mr. Olmstead, ) for the Commonwealth, and by Mr. Randall and Mr. Sergeant, for the defendants.

The principal topics of the argument being adverted to in the opinion of the Court, it is deemed sufficient to give the authorities cited on each side.

On the part of the Commonwealth: --

1. On the questions of evidence were cited Hurst v. Dippo, (1 Dall. 25.) 1 Starkie, 169. 2 Starkie, 167. Hill v. West, (4 Yeates, 144.) Shield v. Buchanan, (2 Yeates, 119.) Ross v. Cutshall, (2 Binn. 402.) Blackburn v. Holliday, (12 Serg. & R. 140.) Lord Sussex v. Temple, (Ld. Rayd. 311.) Sturgess v. Waugh, (2 Yeates, 477.) Read v. Jackson, (1 East, 355.) Cauffman v. The Congregation, & c. (6 Binn. 59.) Bull. N. P. 95. 14 East, 327, (note.) Barnes v. Mawson, (1 Maule & Sel. 77.) Weekes v. Sparke, ( Ld. 679.)

2. On the question of the title of the defendants, Commonwealth v. M'Donough, (16 Serg. & R. 390.) Rung v. Shoneberger, (2 Watts, 23.) Western University v. Robinson, (12 Serg. & R. 29.) Pennant's Hist. of London, 234. Harper v. Charlesworth, (4 Barn. & Cres. 574.) Justin. Inst. Book I. tit. 6, §1. Cod. Book VII. tit. 38, § 2. 1 Domat. 271, 273. 2 Domat. 174. Erskine's Inst. 519, 525. Arundel v. M'Cullough, (10 Mass. 70.) Nickerson v. Brackett, (Id. 212.) Staughton v. Baker, (4 Mass. 528.) Weld v. Harnby, (7 East, 195.) Rex v. Cross, (3 Campbell, 227.) Doe v. Reed, (5 Barn. & Ald. 232.) Goodtitle v. Baldwin, (11 East, 488.) Hylton v. Brown, (1 Wash. C. C. Rep. 204.) Allen v. Lyons, (2 Wash. C. C. Rep. 475.) Penn's Lessee v. Klyne, (4 Dall. 403.) Commonwealth v. Passmore, (1 Serg. & R. 217.) 1 Leon. 190. Chamberlain of London's Case, (3 Leon. 265.) Rex v. Ld. Grosvenor, (2 Starkie's Rep. 511.) 1 Wm. Black. 591. 1 Proud's Hist. of Penn. 169, 242. Howell v. Barclay, (6 Peters' Rep. 512.) Melbyn v. Whiting, (10 Picker. 295.) Cortelyou v. Van Brunt, (2 Johns. Rep. 362.) Packard v. Williams, (7 Wheat. 109.) Emerson v. Wiley, (7 Picker. 68.) Conn v. Penn, (1 Peters' C. C. Rep. 514.) Blundell v. Catteral, (5 Barn. & Ald. 268.) Corfield v. Coryell, (4 W. C. C. R. 379.) Kean v. Rice, (12 Serg. & R. 209.) Arnold v. Munday, (1 Halsted, 71.) Hall's Case, (1 Ventris, 169.) Kirk v. Smith, (9 Wheat. 282.) Mayor, & c. of New Orleans v. The U. States, (Sup.Ct. U. S. 1836, MS . ) Act of 15 th April, 1782 § xi. (2 Smith, 48.) Freytag v. Powell, (District Court Philad. MS. ^[a1])

On the part of the defendants, were cited,

1. Act of 31 st March, 1823, (Purd. 382.) Biddle v. Shippen, (1 Dall. 19.) Morris v. Vanderen, (1 Dall. 67.) Packer v. Gonsalus, (1 Serg & R. 626.)

2. 2 d. Proud's Hist. Penn. 41, 53. Pennant's London, 233, 4. Watson's Annals of Philadelphia, 155, & c. King v. Ward, ( Cro. Car. 266.) Newmarch v. Brantley, (3 Swanst. 99.) 2 Selw. 503, n. Woodyear v. Hadden, (5 Taunt. 126.) Rex v. Lloyd, (1 Campb. 263, n.) M'Connell v. Lexington, (12 Wheat. 585.) Maclay v. Work, (5 Binn. 157.) Town of Pawlett v. Clark, (9 Cranch, 331.) City of Cincinnati v. White, (6 Peters' Rep. 431.) Maclay v. Work, (5 Binn. 157.) Barter v. The Commonwealth, (3 Penn. Rep. 253.) New York Fire Ins. Co. v. Sturgis, (2 Cowen, 664.) Head v. The Providence Ins. Co. (2 Cranch, 127, 166.) Magill v. Brown, (C. C. U.S. Penn. Pamphlet. ) Duke on Uses, 174. Stat. 43 Eliz. cap. 4, § 6. (2 Ruffhead, 709.) 9 Peters' Rep. 960. 2 Anstruther, 617. Doe v. Wilson, (11 East, 56.) Roe v. Ireland, (11 East, 280.) 12 Rep. 5. 3 Dow's Rep. 112. King v. Nevile, ( Peake's N. P. C. 91.) King v. Smith, (4 Esp. N. P. 109.) Ricard v. Williams, (7 Wheat. 109.) Barclay v. Howell, (6 Peters' Rep. 498, 512.) Jackson v. M'Call, (10 Johns. Rep. 380.) Jackson v. Lunn, (3 Johns. Cas. 117.) Beardsley v. French, (7 Conn. 125.) Mather v. Trinity Church, (3 Serg. & R. 510.) Somerville v. Holliday, (1 Watts, 514.) Sugden Vend. 480. Crest v. Jack, (3 Watts, 238.) Le Fevre v. Le Fevre, (4 Serg. & R. 244.) Werkheiser v. Werkheiser, (3 Rawle, 326.) Prevost v. Gratz, (6 Wheat. 491.)

OPINION

SERGEANT, J.

This is substantially a question as to the right of property in a portion of one of the public squares of this city, and has been discussed with a learning and ability proportioned to its importance. The right it involves, is of a peculiar kind and for its determination, requires an investigation into the origin and early history of the city, as well as a notice of several later transactions of the proprietaries, the commonwealth who succeeded...