Wood v. Trustees of State Hospital for the Insane at Warren

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. CHIEF JUSTICE STERRETT:
• Citation: Wood v. Trustees of State Hospital for the Insane at Warren, 30 A. 237, 164 Pa. 159 (Pa. 1894)
• Decision Date: 01 October 1894
• Docket Number: 488
• Parties: Jennie Wood v. Trustees of the State Hospital for the Insane at Warren, Pennsylvania, Appellant

30 A. 237

164 Pa. 159

Jennie Wood v. Trustees of the State Hospital for the Insane at Warren, Pennsylvania, Appellant

No. 488

Supreme Court of Pennsylvania

October 1, 1894

Argued May 3, 1894

Appeal, No. 488, Jan. T., 1894, by defendant, from judgment of C.P. Warren Co., March T., 1893, No. 91, on verdict for plaintiff. Affirmed.

Rule for leave to discontinue condemnation proceedings, on appeal from jury of view.

From the record it appeared that defendant entered upon and took possession of plaintiff's property, and petitioned for the appointment of a jury of view. Viewers were appointed who awarded plaintiff $10,341 as damages. Defendants, being dissatisfied with the award, procured a rule for leave to discontinue the condemnation proceedings. The court discharged the rule in the following opinion, by NOYES, P.J.:

"There is no element of private profit involved in the taking of the land by the trustees of the state hospital; practically it is taken by the state herself, the trustees being no more than her agents.

"The act of May 6, 1891, P.L. 43, under which these proceedings were had, is manifestly copied from the act of 1867 providing for the taking of land for public schools, and differs in no respect affecting the question before us from that act. The case of Funk's Admr. v. Waynesboro School District, 18 W.N. 447, is therefore fully in point and leaves no question that the formal entry upon land and marking off and designating the land to be taken does not so vest the title in the trustees as to prevent an abandonment of the proceedings. Neither is such an abandonment prevented by the subsequent proceedings to view and assess the damages, until final judgment. Moravian Seminary v. Bethlehem, 153 Pa. 584. After a final judgment has been entered the rights of the parties are fixed, and there can be no abandonment: Myers v. South Bethlehem, 149 Pa. 85.

"It is earnestly contended that the petitioners are debarred from abandoning the proceedings, by reason of the confirmation of the report of the viewers by the court. In Dillon on Municipal Corporations, § 473, the final confirmation of a report of viewers is mentioned as one of the limits of the right to discontinue the proceedings. And there are many cases in which similar language is used. But Judge Dillon, in the section cited, is speaking of proceedings to open streets, etc., in which the confirmation of the final report is the final act entitling the municipality to open the streets and the owner to process for the collection of his damages.

"I have been unable to find any case in which the confirmation of a report of viewers nisi, or subject to appeal, has been held to have the effect ascribed to a final judgment. Myers v. South Bethlehem, supra, and the reasons given in that case by Mr. Justice MITCHELL, are wholly inapplicable to a confirmation or judgment, which is not final, but subject to appeal.

"The act of 1891, P.L. 43, which is the authority for these proceedings, provides that, upon the return of the report of viewers to the court, and if damages be awarded and the report be confirmed by the court, judgment shall be entered thereon, and with the right of either party to appeal and have the right to a trial by jury, as in other cases of taking land under the right of eminent domain. The same language, except the provision for appeal, is found in the act of 1867, under which no appeal was allowed. The appeal is now given by the act of the 13th of June, 1874, and is to be taken within thirty days after the ascertainment of the damages, or the filing of the report thereof in the court and not afterwards. These provisions are the law governing other cases referred to in the act of 1891 and are to be read into it.

"The appeal is from the report of the viewers, not from the judgment of the court, which would be absurd, since the appeal itself is to the same court by which the judgment, if ever entered, must be rendered. The meaning of the law is that if, on the report of the viewers, it be found free from exception it shall be confirmed by the court; and if no appeal be taken within the time limited by law, judgment shall be entered thereon. Thus the confirmation of the report and the judgment are not one and the same thing, but separate and successive acts.

"In the present case the order is merely that the report be confirmed subject to the right of appeal. The regularity of the proceedings has perhaps been adjudicated, but no judgment has as yet been entered. I am of the opinion that the mere confirmation of the report subject to the right of appeal followed by appeal in due time, does not conclude the petitioners' right to abandon the land and discontinue the proceedings.

"But it appears by the petition of the trustees for the appointment of viewers that they have not merely formally entered upon the land and marked off and designated its boundaries, but that, in pursuance of the act of assembly, they had at the time of filing the petition 'entered upon and occupied and are now occupying, for the purposes hereinbefore designated,' the land of the respondent. The purposes designated in the petition are 'necessary hospital uses and purposes; among which uses and purposes are, in part, included the cultivation and raising of garden and farm produce, vegetables, grain and hay, and the pasturage of stock for the supply of milk, butter and meat for the use of the patients and employees in and about said hospital.'

"The auditor finds, and the evidence clearly shows, that, at the time of the inception of these proceedings, the trustees of the hospital were in possession of the farm of the respondent as her tenants by written lease, the term expiring April 1, 1893, five days before the report of the viewers was filed in court. In November, 1892, they had given notice that they would surrender the possession at the termination of the lease. In January, they resolved to take the land under the authority of the act of assembly. And February 13th the petition from which I have quoted was filed. March 31st, they settled with the respondent and paid her the rent in full to the first of April. [The auditor finds that they continued in the possession after the first of April, as they had been before, until the 22d of that month, when they gave notice to the respondent that they abandoned the same and surrendered the possession to her. From the 1st to the 22d of April, therefore, the petitioners were in the actual possession and occupation of the land under a claim of ownership, for hospital purposes, and not as tenants under the lease. The situation was the same as if the trustees, by virtue of the right of eminent domain, had entered upon the farm of respondent, in the possession of her tenant, taken the possession from such tenant, and kept it exclusively for nearly a month, while proceedings for the assessment of damages were in progress. The situation does not appear to be affected by the fact that the trustees were themselves the tenants of Mrs. Wood, since they took so much pains to leave no doubt of their intention to terminate the relation of landlord and tenant, and to hold thereafter under the right of eminent domain.]

"May the commonwealth, or any municipality or corporation to which she may delegate her powers, after entering upon land, taking actual and not merely formal possession, excluding the owner from his property and actually applying the same to the public use for which it was taken, abandon the proceedings and compel the owner to receive back his land as a complete or pro tanto satisfaction for his damages?

"In Dillon on Municipal Corporations it is said that proceedings may be abandoned 'any time before taking possession of the property under complete proceedings, or before final confirmation.' But in section 474 he says, 'it has even been held that if the municipality deem it best to abandon the proposed work or project it may do so and discontinue proceedings although it may have taken possession of the premises.' For this, the case of Hullen v. Municipality, 11 Rob. (La.) 97, is cited, to which I have not access. I cannot therefore determine how far the statutes of Louisiana differ from that now under consideration. But Judge Dillon (section 479) states the general rule as follows: 'So it is generally held that such a party is entitled to payment when the report of the commissioners of assessment has been finally acted upon and confirmed, or when, before confirmation, the municipal authorities have taken and retained the actual use of his property.' In Funk's Administrators v. Waynesboro School District, supra, Mr. Justice GORDON is careful to notice that there had been no actual possession taken, and strongly intimates that such possession would have produced a different result. The question was not raised in Moravian Seminary v. Bethlehem, the only question there being upon the effect of an irregular judgment. In Crangle v. Harrisburg, 1 Pa. 132, it was said by Judge SERGEANT that title to land taken by the borough, under the special waterworks act, vested in the borough in fee on payment of the money. But so far as the time of the vesting of title was concerned, no such point was involved in the case, and there was no provision in the law for security, public or otherwise, which would be a sufficient reason for the ruling at all events: Keene v. Bristol, 26 Pa. 46.

"So long as compensation is provided for there is no constitutional difficulty preventing the commonwealth from providing for the taking of land for public purposes either in fee or for any less estate, permanently or temporarily and providing for the vesting of the title and the consequent right of the owner to damages at any point in the proceedings which s...