Appeal, No. 110, March T., 1951, from decree of Court of Common Pleas of Beaver County, June T., 1950, in Equity, No. 8, in case of James N. Miller et ux. v. City of Beaver Falls. Judgment reversed; reargument refused August 1, 1951.
W. Denning Stewart, for appellants.
J. Leonard Solomon, City Solicitor, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE BELL
This appeal involves the constitutionality of an ordinance dated April 10, 1950 enacted pursuant to the Act of June 23, 1931, P.L. 932, known as "The Third Class City Law", Art. XXXVII, §§ 3701, 3702, 53 P.S. § 12198-3701, 3702. Appellants purchased 16 acres of ground in the 6th Ward of the City of Beaver Falls on April 8, 1950. Either their predecessor in title or the holder of a mortgage on said property notified the City on November 23, 1949 that the property had been purchased for immediate development; that the purchasers intended to erect 72 dwellings thereon; and requested City Council to install sewers in accordance with a plan and to connect the sewers with a public sewer. The property was on a recorded plan of lots, with streets and alleys laid out.
On April 10, 1950, the City Council -- after notice (of November 23, 1949) of the owners' intention to erect houses on the land in question -- passed an ordinance, No. 960, adopting a general plan for parks and playgrounds of the City of Beaver Falls "including those which have been or may be laid out but not opened". A plan of the parks and the playgrounds was attached to and made a part of the ordinance. Appellants knew that such an ordinance had been introduced in Council and had passed first reading when they actually settled for the property. Several months prior to this time appellants' predecessor had begun the construction of 12 houses on a portion of the 16 acres of their land, but had not commenced the crection of any dwellings on the approximately 4 1/2 acres of land which was covered by the above mentioned ordinance.
Section 3701 of the Act of June 23, 1931, supra, reads (page 1084): "... No person shall hereafter be entitled to recover any damages for the taking for public use of any building or improvements of any kind which may be placed or constructed upon or within the lines of any located park or playground, after the same shall have been located or ordained by council."
Section 3702 of the Act of June 23, 1931, is as follows: "Whenever any park or parkway may hereafter be superimposed upon the confirmed plan of the streets or parks of any city, in sections not entirely built up, by ordinance of council, unless an ordinance actually appropriating the land*fn* within the lines of said park or parkway to public use is duly passed by council thereof, or said land is acquired by council, within three years from the passage of said ordinance superimposing said plan upon said land, said ordinance superimposing said plans upon said land shall be void and of no effect,...". The city has not condemned the property under its
power of eminent domain nor made any appropriation of funds for the purpose of paying damages for any property which might be taken ...