Appeal, No. 42, March T., 1950, from decree of Court of Common Pleas of Allegheny County, April T., 1948 in Equity, No. 1716, in case of Harry J. Hoffman et al. v. City of Pittsburgh et al. Decree affirmed.
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 BY MR. JUSTICE BELL
The City of Pittsburgh on July 11, 1947, adopted Ordinance No. 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 1888 the 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 ...