Peters v. City of Reading

• Decision Date: 23 March 1936
• Docket Number: 133
• Citation: 321 Pa. 220,184 A. 23
• Parties: Peters et al. v. Reading, Appellant
• Court: Pennsylvania Supreme Court

184 A. 23

321 Pa. 220

Peters et al. v. Reading, Appellant

No. 133

Supreme Court of Pennsylvania

March 23, 1936

Argued January 21, 1936

Appeal, No. 133, Jan. T., 1936, by defendant, from order of C.P. Berks Co., Sept. T., 1933, No. 215, in case of Esther (Hettie) Peters et al. v. City of Reading. Order appealed from is affirmed.

Condemnation proceeding.

The opinion of the Supreme Court states the facts.

Petition by municipality for leave to abandon proceedings dismissed opinion by SCHAEFFER, P.J. Petitioner appealed.

Error assigned was refusal of petition.

The order appealed from is affirmed.

William McKelvy Rutter, Assistant City Solicitor, with him Darlington Hoopes, for appellant.

John B Stevens, of Stevens & Lee, for appellees.

Before KEPHART, C.J., MAXEY, DREW, LINN and BARNES, JJ.

OPINION

MR. JUSTICE LINN:

The only question is whether the appellant city may withdraw and discontinue condemnation proceedings in the circumstances disclosed by the record.

The right of eminent domain is an attribute of sovereignty, inherent in the State, to be exercised subject to applicable provisions of the Constitution and in accord with statutes regulating procedure. It is generally exercised by the State, or by agencies to which the State delegates the power, such as municipal corporations and others sometimes designated quasi-public corporations.

It has been held that, in the absence of statute providing otherwise, the State may discontinue such proceedings at any time before, but not after, taking possession (Phila. v. Com., 284 Pa. 225, 130 A. 491; Wood v. Trustees of State Hospital, 164 Pa. 159, 30 A. 237) or, before but not after judgment (Reinbold v. Com., 319 Pa. 33, 179 A. 571); that a municipality may likewise do so (Weiss v. South Bethlehem, 136 Pa. 294, 20 A. 801, s.c. Myers v. South Bethlehem, 149 Pa. 85, 24 A. 280; cf. Moravian Seminary v. Bethlehem, 153 Pa. 583, 26 A. 237; Huckestein v. Allegheny, 165 Pa. 367, 30 A. 983; Sensenig v. Lancaster Co., 30 Pa.Super. 224; Funk v. Waynesboro School Dist., 18 W.N.C. 447) and that a railroad company has the same right prior to taking possession or giving bond: Speer v. Monongahela R.R. Co., 255 Pa. 211, 99 A. 810. The withdrawal by the municipality considered in the South Bethlehem cases took place prior to applicable legislation on the subject, and when the Weiss Case came up the second time (reported as Myers v. South Bethlehem, 149 Pa. 85, 92) we said, in dealing with possible inconveniences resulting from the cost of public improvements in excess of what had been expected: "As already said the remedy must be legislative, and for future cases it has been supplied by the Act of May 16, 1891, section 7, P.L. 78" (53 PS section 403). ^[1]

This proceeding began by ordinance of the City of Reading, adopted December 7, 1927, for the appropriation of certain land belonging to the appellees "for the use of the Bureau of Water." Viewers were appointed and filed their report in October, 1933. The property owners appealed from the award and the case is still pending below. In 1935, pursuant to an ordinance repealing the condemnation ordinance, the city filed a petition for leave to discontinue the proceedings setting forth, however, that the property owners were "entitled to all costs upon the proceedings, including attorney's fees to be fixed by the court" and asking that they be assessed. By answer, the city's right to discontinue was denied on the ground that the period allowed by the statute for discontinuance had expired. As the city was exercising a delegated right of sovereignty, it was necessarily required to do so on the terms on which the State conferred the power to condemn. Discontinuance of eminent domain proceedings by cities of the third class appears to have been regulated for the first time by the Act of May 23, 1889, P.L. 277, article XIV, section 7, providing that "In case any such city shall repeal any ordinance passed, or discontinue any proceedings taken, providing for any of the improvements mentioned in the first section of this article, 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 city shall not thereafter be liable to pay any damages which have been or might have been assessed, but all costs upon any proceedings had thereon shall be paid by said city." This section was reenacted verbatim in the Third Class City Law of 1913, P.L. 568, article XIV, section 7, but by the Act of 1919, P.L. 310, section 36 (53 PS section 11497) there was added to the costs "attorney fees to be fixed by the court on behalf of the owner or owners." The most recent delegation of power available to the appellant, with limitations on its exercise, is contained in the Third Class City Law, approved June 23, 1931, P.L. 932, ^[2] article XXVIII, sections 2801 to 2848, 53 PS sections 12198 et seq. Section 2847 provides: "Discontinuance of Proceedings. -- If any city shall repeal any ordinance, or discontinue any proceeding, providing for any of the improvements mentioned in this article, prior to the entry upon, taking, or injury to any property or materials, and within thirty days after the...