Leech Appeal
| Decision Date | 15 November 1951 |
| Citation | 170 Pa.Super. 130,84 A.2d 787 |
| Parties | Appeal of LEECH et al. (two cases). |
| Court | Pennsylvania Superior Court |
Argued September 27, 1951.
Petition for Rehearing Denied Dec. 6, 1951.
Application for Allocatur Allowed Jan. 8, 1952.
William A. Leech, Jr., and others, filed a complaint questioning the legality of a resolution of the Borough of Dormont, Allegheny County, Pennsylvania, passed June 5, 1950, effective June 16 1950, granting an option to purchase certain land which had been previously dedicated by the Borough to the public for park purposes. The Court of Quarter Sessions of Allegheny County at No. 153, January Sessions, 1950, Misc. Docket Thomas M. Marshall, J., held that the Borough had power to grant the option and dismissed the complaint, and complainants appealed. The Superior Court, No. 107, April Term, 1951, Hirt, J., held that the public had accepted the dedication and the subsequent resolution was invalid and of no effect.
Order reversed.
Appeal, No. 107, April T., 1951, from order of Court of Quarter Sessions of Allegheny County, Jan. Sessions, 1950 Misc. Docket, No. 153, in Appeal of William A. Leech, Jr., et al. from Resolution of Borough of Dormont, Allegheny County.
Proceeding upon petition of property owners, under Act of May 4, 1927, attacking legality of a borough council resolution. Before Marshall, J.
Order entered dismissing petition. Petitioners appealed.
John G. Wayman, with him Herbert V. Brownlee, for appellants.
Arthur Wessel, Jr., with him Walter W. Riehl, for appellees.
HIRT J.
In 1942 the Borough of Dormont acquired title to approximately 4 1/2 acres of land by sheriff's deed for nonpayment of taxes and municipal claims. The tract is bounded on the south by Annapolis and on the east by Dormont Avenues; it joins Dormont Park on the north and west. The Borough on taking title, paid all delinquent county taxes in full and took title with the full consent of the school district of the Borough. By ordinance which became effective on March 3, 1943, the Borough dedicated the land "to the general public for park purposes and to become a part of Dormont Park", a tract of 29 1/2 acres used by the public as such for many years. The school district, by resolution, consented specifically to this dedication of the land for park purposes. On June 5, 1950, by resolution passed by a majority of the Borough council over the veto of the Burgess, the Borough, for a nominal consideration, gave an option to James W. Stevenson, Jr., for the purchase of the entire 4 1/2 acre tract for $ 50,000 payable within 6 months from the above date. Thereupon the present appellants by complaint addressed to the Court of Quarter Sessions of Allegheny County under Art. X, § 1010 of the Act of May 4, 1927, P. L. 519, as amended, 53 PS § 12900, questioned the legality of the option. The complainants all are citizens of the Borough who own real estate in the vicinity of the tract in question. As such owners they are persons aggrieved within the purview of the Act. Cf. Hoffman et al. v. Pittsburgh et al., 365 Pa. 386, 391, 75 A.2d 649. After hearing the lower court in effect held that the Borough had the power to grant the option, notwithstanding the prior dedication of the land for park purposes; accordingly the complaint was dismissed. Hence, this appeal.
Municipalities are not sovereigns and they do not possess and cannot exercise powers other than those granted by statute in express words or by necessary implications. Kline et al. v. Harrisburg et al., 362 Pa. 438, 443, 68 A.2d 182. A Borough may convey real estate under the power conferred by The General Borough Act, as amended by the Act of July 10, 1947, P. L. 1621, 53 PS § 13311. In disposing of this appeal we shall assume, without deciding, that the power to sell real estate, in the best interest of the Borough, includes the power to give an option for the purchase of lands standing in the name of the Borough. In our view, however, the lower court erred in ignoring the effect of public acceptance of the dedication of the tract as a part of Dormont Park, when it offered the land for sale by the resolution of June 5, 1950. The order will be reversed.
In general a municipality is without power to alienate lands dedicated to the public for park purposes. The rule is decisively affirmed in Hoffman et al. v. Pittsburgh et al., supra, p. 391, in this language: "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...
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