Goodman v. City of Bethlehem

Decision Date26 June 1936
Docket Number101
Citation323 Pa. 58,185 A. 719
PartiesGoodman et ux. v. City of Bethlehem, Appellant
CourtPennsylvania Supreme Court

Argued April 15, 1936

Appeal, No. 101, Jan. T., 1936, by defendant, from judgment of C.P. Northampton Co., July T., 1931, No. 54, in case of David J. Goodman et ux. v. City of Bethlehem. Judgment affirmed.

Appeal by city from report of viewers.

The opinion of the Supreme Court states the facts.

Petition by city to discontinue condemnation proceedings dismissed opinion by STEWART, P.J. Verdict and judgment for plaintiff before McKEEN, J. Defendant, city, appealed.

Errors assigned, among others, were various rulings on evidence.

The assignments of error are overruled and the judgment affirmed.

Daniel L. McCarthy, for appellant.

R. C. Mauch, with him Lehman, Hamilton, Castellucci & Adams, for appellees.

Before KEPHART, C.J., SCHAFFER, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. JUSTICE STERN:

Plaintiffs are the owners of a tract of land at the northwest corner of Elizabeth Avenue and Nazareth Pike in the City of Bethlehem. The title deeds describe the property as extending 130 feet on each of these highways. On the southeasterly part of the tract is erected a hotel property. Nazareth Pike was 33 feet in width, but by ordinance No. 392, passed in 1923, the City of Bethlehem ordained that the center line of the pike be relocated and the pike widened to 70 feet. The new center line was established about 6 1/2 feet west of the former line; the result was that a strip approximately 25 feet in width would be taken from the easterly part of plaintiffs' land, including a porch and a substantial part of the hotel building.

In 1930 the city passed ordinance No. 625 providing for the paving of the Nazareth Pike and resetting of the curb in accordance with the new lines, and entered into a contract with one Hausman for the necessary work. Hausman started in August, 1930, and completed the work in December, 1930; it was accepted by the city and paid for. In performing his contract Hausman excavated the roadway to the necessary depth up to the porch line of the hotel, and paved the roadway and constructed the curb from Dech Street, which bounds plaintiffs' property on the north, to the porch line on the east side of the hotel. He did not, however, tear down or disturb any portion of the hotel building or porch.

In 1931, upon petition of plaintiffs, the court appointed a board of viewers to fix the damages that had accrued to plaintiffs' property and that of other owners of land abutting on the pike. On February 8, 1932, the board filed their report and on the same day it was confirmed nisi, damages being awarded to plaintiffs in the sum of $45,100. On March 5, 1932, the city appealed from the findings of the board to the court of common pleas and later an issue was framed.

On June 13, 1932, the City of Bethlehem passed ordinance No. 660, changing the west curbline and sidewalk space on the west side of the pike, and fixing the new westerly line so that no part of plaintiffs' porch or hotel building was taken, but only a triangular strip of land containing about 830 square feet; the ordinance repealed all former ordinances inconsistent therewith. On June 30, 1932, the city petitioned the court for an order permitting it to discontinue and abandon the condemnation proceedings in so far as they pertained to plaintiffs' property and referring the matter to viewers to determine the amount of reasonable costs and expenses incurred by plaintiffs by reason of the proceedings and the discontinuance thereof. On this petition a rule to show cause was granted, an answer was filed by plaintiffs, a stipulation of facts entered into, and argument was had thereon. On November 5, 1934, the court discharged the rule. In February, 1935, the case came on for trial before a jury which, on March 1, 1935, returned a verdict in favor of plaintiffs in the sum of $30,000. Defendant's motion for a new trial and for judgment n.o.v. were refused, and judgment was entered on the verdict. From that judgment the City of Bethlehem has taken the present appeal.

The principal question raised is as to the legal effect of ordinance No. 660, which, if not in terms, at least in result, practically abandoned the condemnation as far as plaintiffs' property was concerned. It is plaintiffs' contention that the condemnation proceedings had progressed to a point which foreclosed the right of the city to take such action.

As stated in Reinbold v. Com., 319 Pa. 33, 35, "In nearly all the states of this country, it is declared that condemnation proceedings begun by any public authority, may be discontinued as of course if application so to do is made at a proper time, the uncertain question being -- Until what time? Generally speaking, the answer to this question is determined by the applicable statutory provisions of the particular states, but in none of them does it seem to be doubted that the discontinuance should be allowed if seasonably applied for."

As far as cities in Pennsylvania are concerned, prior to the Act of 1891 it was held that the court might authorize a discontinuance of condemnation proceedings by a municipal corporation before final judgment was actually entered in favor of the owner: Myers v. South Bethlehem, 149 Pa. 85; Moravian Seminary v. Bethlehem, 153 Pa. 583. The Act of May 16, 1891, P.L. 75, section 7, provided that, "In case any such municipal corporation shall repeal any ordinance passed, or discontinue any proceedings taken, providing for any of the improvements mentioned in the preceding sections prior to the entry upon, taking, appropriation or injury to, any property or materials, and within thirty days after the filing of the report of viewers assessing damages and benefits, the said municipality shall not thereafter be liable to pay any damages which have been, or might have been, assessed, but all costs upon any proceeding had thereon shall be paid by said municipal corporation, together with any actual damage, loss or injury sustained by reason of such proceedings." A similar provision for cities of the third class was contained in the Act of June 27, 1913, P.L. 568, article XIV, section 7, as amended by section 36 of the Act of May 27, 1919, P.L. 310. The only material difference is the omission of the phrase, "together with any actual damage, loss or injury sustained by reason of such proceedings," and the addition of the clause, "including attorney fees to be fixed by the court on behalf of the owner or owners." The Acts of 1913 and 1919 were repealed by the Act of June 23, 1931, P.L. 932, but substantially the same provision was reenacted by section 2847 of the new act. While still affording municipalities an opportunity to retreat from a scheme of condemnation where the report of the board of viewers indicates that the cost may be prohibitive, the purpose of this legislation was obviously to put a definite limit upon the time in which such privilege may be exercised, in order to prevent injustice to the landowner by a belated change of plan on the part of the municipal authorities.

It is clear that in the present case the attempt of the city to abandon the condemnation of plaintiffs' property was wholly invalid in that it failed to comply with either of the two time limits established by the statutes referred to. The report of the board of viewers was filed on February 8, 1932; thirty days thereafter would have been March 9, 1932, but ordinance No. 660 was not passed until June 13, 1932. Moreover, this was nearly two years after the city, through its contractor Hausman, had entered upon plaintiff's premises and commenced the work of paving and setting the curbs in accordance with the ordinance for widening. Ordinarily the title to property taken under right of eminent domain passes to the condemnor when a bond to secure the damages has been filed and has been accepted by the owner or approved by the court. At that time the grasp of the owner is released from the property and he is remitted to the bond for the damages which he may sustain. The condemnor is then at liberty to enter upon and take possession of the property. The Act of May 4, 1927, P.L. 728, made the power of taxation of municipalities security for the taking of private property for public use, and provided that they should not be required to enter any bond. The actual entry, therefore, by a city upon land which it has condemned constitutes a taking or appropriation which vests title in the city and fixes the right of the owner to the recovery of damages. Indeed this was the law even prior to that act: Shobert v. Bloomsburg, 74 Pa.Super. 246.

It was said in Wood v. Trustees of State Hospital, 164 Pa. 159, 169: "If . . . defendants had a right to discontinue, and had been permitted to do so, there would have been nothing to prevent them from inaugurating new proceedings, and in like manner withdrawing therefrom; and thus they might commence and abandon new proceedings from time to time with a view of obtaining an award that would be satisfactory to themselves. Corporations and others invested with the power of eminent domain should not be permitted to thus experiment with judicial proceedings for any such purposes. Whenever it clearly appears . . . that there has been such an actual taking under the power of eminent domain, as invests the donee of the power with title, and gives to the landowner a vested right to compensation, the former should not be permitted to discontinue without the consent of the latter. Any other rule would be productive of oppression and other mischievous results."

In the case of condemnation by railroad corporations it has been well established that after the...

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