Hoffman v. Pittsburgh

• Decision Date: 02 October 1950
• Citation: 365 Pa. 386,75 A.2d 649
• Parties: HOFFMAN et al. v. CITY OF PITTSBURGH et al.
• Court: Pennsylvania Supreme Court

75 A.2d 649

365 Pa. 386

HOFFMAN et al. v. CITY OF PITTSBURGH et al.

Supreme Court of Pennsylvania

October 2, 1950

Argued May 23, 1950

Appeal, No. 42, March T., 1950, from decree of Court of Common Pleas of Allegheny County, April T., 1948 in EquityNo. 1716, in case of Harry J. Hoffman et al. v. City of Pittsburgh et al.Decree affirmed.

Bill in equity to restrain City from acquiring and selling property pursuant to ordinance.Before McNAUGHER, J.

Adjudication filed awarding plaintiff injunctive relief; exceptions to adjudication dismissed and final decree entered.Defendants appealed.

Decree affirmed; costs to be paid by City of Pittsburgh.

Albert D. Brandon,Assistant City Solicitor, with him Anne X. Alpern,City Solicitor, for appellants.

Joseph A. Beck, with him Frank W. Stonecipher, for appellees.

Before DREW, C.J., STERN, STEARNE, JONES and BELL, JJ.

OPINION

MR. JUSTICE BELL

The City of Pittsburgh on July 11, 1947, adopted OrdinanceNo 263 of 1947 pursuant to the Act of Assembly of July 2, 1937, P.L. 2793, 53 P.S. § 1331-3.This Ordinance authorized the City to acquire a fee simple title to Diamond Market House and the land on which it is erected, known as Diamond Square, and to sell the said property to the highest responsible bidder for private use; and steps were taken to consummate said sale.Plaintiffs filed a bill in equity to enjoin the proposed sale.The original plaintiff brought his action as a resident and taxpayer and as a farmer who sold his produce at the Diamond Market House and on behalf of other farmers similarly situated.The intervening plaintiffs are owners of a lot fronting on Diamond Square.

The lower court held that the City of Pittsburgh had no estate or title in or to the property known as Diamond Square; that the aforesaid Act of 1937 did not apply to property in which the City had no estate; that the aforesaid City Ordinance passed pursuant to said Act was illegal and void; and granted an injunction restraining the City from proceeding to acquire a fee simple title to Diamond Square and from selling said land under said Ordinance.

Diamond Square is a strip of land about 260 by 280 feet, an area of seventy-two thousand eight hundred square feet, located at the intersection of Market and Diamond Streets in the First Ward of the City of Pittsburgh.This square was laid out in 1784 in the original plan of the Town of Pittsburgh drafted by Colonel George Woods, surveyor, acting for John Penn and John Penn, Jr., the then owners of the land; and lots fronting on Diamond Square were sold pursuant to said plan.When the original plan of the Town of Pittsburgh was laid out, neither the City or Borough of Pittsburgh nor the County of Allegheny were in existence.There is no other specific evidence that this tract of land was dedicated as a public square or otherwise, or that there was a formal acceptance of a dedication; however, it is agreed by the parties herein that because contemporaneous deeds refer to Diamond Square as a public square and because of the decision of Judge Stowe in Holmes v. City of Pittsburgh,35 P.L.J. 491, in 1888the law has conclusively presumed a grant from the original proprietor for public square purposes.

On July 8, 1794 the Borough of Pittsburgh, the predecessor of the City of Pittsburgh, authorized the erection of a public market house and market stalls on the easterly half of this square.In 1795 the County of Allegheny erected on the westerly half of the square a Court House which was maintained and occupied as such until 1836.A new Court House having been erected, on August 11, 1841 the Commissioners of Allegheny County sold the "Old Court House building and offices" at public auction to one William Eichbaum, who assigned all his right, title and interest in the building to the City of Pittsburgh by an instrument dated August 18, 1841.On November 10, 1841 the Commissioners of Allegheny County transferred to the City of Pittsburgh all its right, title and interest in the Diamond Market "for such Estate and under such conditions as the said County of Allegheny at the time of the sale aforesaid had and held the same."

In 1852 a new building was erected by the City on the westerly portion of the square; the first floor was used by the City as a City Hall and the second floor as a public meeting house.In 1868, a new City Hall having been built, the first floor was used for market purposes in addition to the market house on the easterly half of the square.

In the course of time Market Street became extended through Diamond Square and the market house occupants encroached on Market Street and interfered with traffic.The case of Holmes v. City of Pittsburgh, 35, P.L.J. 491, followed and Judge STOWE held that it must be concluded that Diamond Square had been dedicated as a public square "to be used for the purposes to which such squares were usually dedicated, such as market-houses, court-houses, or other public buildings"; that it had been so long used for purposes "consistent with the dedications of such squares to public uses in this State" that "the law will now conclusively presume a grant from the original proprietor for such uses."The City could therefore maintain its market houses "as now erected" but it was enjoined from interfering with that portion of the square, being a continuance of Market Street, which was used as a public street or highway.

In 1914 Diamond Street was opened through the square and the City erected a new market house consisting of four units of two stories and a mezzanine floor each, joined together by an archway over Diamond Street and a bridge over Market Street.The City of Pittsburgh operated the market house until 1936 when it entered into an agreement with the Pittsburgh Market House Protective Association under the terms of which that Association operated the market house and paid rent to the City.This arrangement has continued to the present; the last agreement being executed in 1941 and expiring in 1946.

Diamond Square became a financial burden and the City fathers being in need of revenue decided to sell it to the highest bidder.From an injunction restraining the sale, the City has appealed.

We shall first dispose of defendant's preliminary contention that plaintiffs have no standing in equity.This is without merit: Trustees of Philadelphia Museums v. Trustees of University of Pennsylvania,251 Pa. 115, 96 A. 123;Mahon v. Luzerne County,197 Pa. 1, 46 A. 894;Conmmonwealth v. Connellsville Borough,201 Pa. 154, 50 A. 825.The right of the intervening plaintiffs as owners of lots fronting on Diamond Square is particularly clear.In Commonwealth v. Connellsville Borough,201 Pa. 154, 158, 50 A. 825, Mr. Justice MITCHELL said: "... the private complainants as purchasers of lots fronting on this public ground have a special interest in the use to which it may be put, in addition to the interest of the general public represented by the attorney general."A like interest applies to alienation as well as to use.

The next question of importance is whether the City of Pittsburgh has the power to alienate lands which have been dedicated to the public.The applicable principle of law is well stated in 3 Dillon, Municipal Corporations, 5th Ed., Sec. 1102: "A municipal corporation has no implied or incidental authority to alien, or to dispose of for its own benefit, property dedicated to or held by it in trust for the public use or to extinguish the public uses in such property , ^[*] nor is such property... or the proceeds of sale thereof available for the payment of the debts of the municipality."

This has been the law of Pennsylvania for over a century: Commonwealth v. Rush,14 Pa. 186;Ormsby Land Co. v. Pittsburgh,276 Pa. 68, 119 A. 730;Commonwealth v. Alburger, I wharton 468;Commonwealth v. Bowman,3 Pa. 202;Pittsburg v. Epping-Carpenter Company,194 Pa. 318, 45 A. 129;Pennsylvania Mutual Life Ins. Co. v. Philadelphia,242 Pa. 47, 53, 88 A. 904;Belovsky v. Redevelopment Authority,357 Pa. 329, 340, 54 A.2d 277;Wentz v. Philadelphia,301 Pa. 261, 271, 151 A. 883.

In Commonwealth v. Rush,14 Pa. 186, the City of Allegheny in order to redeem certain certificates of debt incurred in the construction of water works of the City and for other public purposes, authorized by ordinance of City Councils the sale of 40 lots at public sale.These lots were part of certain land which had been dedicated as a public square according to a plan of the old town.Defendant purchased one of the lots and commenced to erect a house thereon.A bill in equity was filed by the Attorney General against the Mayor of the City of Allegheny and the purchaser of said lot and an injunction granted thereon by the court.The court found that title to said land was by Act of Assembly dated April 13, 1840 vested in the City of Allegheny for such public uses as Councils might from time to time direct and ordain.

The aforesaid injunctive decree was affirmed on the opinion of the court below which said inter alia (page 189): "... the usual mode of dedicating streets, squares, &c. to the public, in this State, is simply to designate them on the plat or draft of the town as such, and if a square is intended, the purpose for which intended in there inserted; and this is a good and valid dedication, which will be binding on the parties concerned: 6 Pet. Rep., Barclay & Howell;id. 431;10 Pet. 712;6 Ohio 130....

"The next question is -- Have the city councils a right to sell and convey this property to individuals for private purposes?"...

" The pretence is, that because the proceeds of the sale of this square are applied to the public purpose of supplying the city with water, that, therefore, the city councils have...