Lazarus v. Morris
| Decision Date | 15 May 1905 |
| Docket Number | 193 |
| Parties | Lazarus v. Morris, Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 11, 1905
Appeal, No. 193, Jan. T., 1904, by defendant, from order of C.P. Luzerne Co., Oct. T., 1902, No. 809, dismissing exceptions to report of referee in case of George Lazarus et al. v. Michael W. Morris. Affirmed.
Ejectment for land in Hanover Township.
Exceptions to report of Felix Ansart, Esq., referee.
The facts are stated in the opinion of the Supreme Court.
The referee reported in favor of the plaintiff.
Exceptions to referee's report were dismissed by the court.
Error assigned was in dismissing exceptions to report of referee.
Judgment affirmed.
James L. Morris, with him Woodward, Darling & Woodward, for appellant. -- The school district took a fee: Waynesboro School District 1 Pa. C.C. Rep. 422; Funk v. School District, 3 Sadler, 177; Pittsburg & Lake Erie R.R Co. v. Bruce, 102 Pa. 23; Commonwealth v. McAllister, 2 Watts, 190; Haldeman v. Penna. Central R.R. Co., 50 Pa. 425; Delaware Division Canal Co. v. McKeen, 52 Pa. 117; Craig v. Mayor, etc., of Allegheny, 53 Pa. 477; Robinson v. Railroad Co., 72 Pa. 316; Wyoming Coal & Transportation Co. v. Price, 81 Pa. 156; P. & N.Y. Canal & R.R. Co. v. Billings, 94 Pa. 40; Cameron v. Pittsburg, etc., R.R. Co., 157 Pa. 617.
Daniel A. Fell, with him G. Fred Lazarus, for appellees. -- School boards only acquire an easement to the lands which they condemn under the Act of Assembly of April 9, 1867, P.L. 51: Long v. Fuller, 68 Pa. 170; Funk v. School District, 18 W.N.C. 447; Newville Road Case, 8 Watts, 172; Cooley on Constitutional Limitations, 558; R.R. Co. v. Bruce, 102 Pa. 23; Jessup v. Loucks, 55 Pa. 350; Kellogg v. Malin, 50 Mo. 496.
Before MITCHELL, C.J., FELL, MESTREZAT, POTTER and ELKIN, JJ.
While the appellant has specified thirty-one assignments of error, it is only necessary to discuss one proposition of law in order to dispose of this case. If the school district of Hanover township acquired by condemnation proceedings under the Act of April 9, 1867, P.L. 51, an estate in fee simple to the land described in the writ of ejectment, the contention of the appellant must be sustained. If it only acquired the use and occupancy thereof for school purposes, now abandoned, the case must be affirmed.
The only title claimed by the appellant is that conveyed to him by the school district. The only title or interest the school district had in said land was that acquired by proceedings under the act of 1867. The question therefore arises, what right, title or interest did the school district take by reason of the proceedings instituted and prosecuted to judgment under said act? The answer is contained in the act itself which provides that when school directors are unable to procure eligible sites for the erection of schoolhouses by agreement with the landowner, it shall be lawful "to enter upon and occupy sufficient ground for the purpose, which they shall designate and mark off, not exceeding in any case one acre, and to use and occupy the same for the purpose of erecting thereon a schoolhouse, with its necessary or convenient appurtenances; and for all damage done and suffered, or which shall accrue to the owner or owners of such land, by reason of the taking of the same, for the purposes aforesaid, the funds of the district, which may be raised by taxation, shall be pledged and deemed as security." The act further provides for the appointment of viewers, to go upon the land "and having viewed the premises, they shall establish and determine the quantity and value of the land so taken, to be used for the purposes aforesaid, and after having made a fair and just computation of the advantages, and disadvantages, they shall estimate and determine whether any, and if any, what amount of damage has been or may be sustained."
It will be observed that the act only covers the use and occupancy of the land so appropriated for school purposes. The damages assessed are intended as compensation for such use and occupancy. The viewers are to take into consideration the advantages and disadvantages to the landowner in the computation of damages, the thought being that the location of a schoolhouse near the home of the owner is an advantage to him, which should be taken into consideration in fixing the amount thereof. There is not a suggestion from the beginning to the end of the statute that the school district is to acquire anything more than a right to use and occupy the land for school purposes. This is the central idea upon which the entire statutory proceeding is based. The right to take private property for this public use is asserted under the power of eminent domain. Such power is an attribute of sovereignty. From the very nature of society and organized government it must belong to the state. It exists independent of constitutional mandate, and it existed prior to constitutions....
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