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APPEALS BOROUGH DALLAS. (DALLAS BOROUGH ANNEXATION CASE.) (07/19/51)

July 19, 1951

APPEALS OF BOROUGH OF DALLAS. (DALLAS BOROUGH ANNEXATION CASE.)


COUNSEL

Arthur H. James, Wilkes-Barre, Burt B. Lewis, Dallas, for appellant.

Jonathan C. Valentine, for Dallas Tp. School Dist.

Robert L. Fleming, Wilkes-Barre, for Dallas Tp.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Dithrich

[ 169 Pa. Super. Page 131]

DITHRICH, Judge.

On petition of the Dale Realty Corporation (hereafter called Realty Corporation), the council of the Borough of Dallas passed an ordinance on July 13, 1949, annexing certain land of that corporation lying adjacent to the Borough in the Township of Dallas.

The appellees, the Township and its School District, contested the legality and propriety of the ordinance before the Court of Quarter Sessions of Luzerne County sitting en banc. That court adjudged the ordinance illegal on the ground that the petition upon which it was based was 'not signed by a majority of the freeholders of the territory sought to be annexed.' This conclusion was reached after findings that the description of the ordinance included, in addition to the land of the sole petitioner, the Realty Corporation, a small triangular piece of land, with a base of 7.22 feet and sides 182 feet in length, belonging to the Wilkes-Barre Transit Corporation, and another piece, 6 to 12 inches in width and 120 feet long, belonging to one Howard Wardan. The ordinance having been found illegal, the court below did not pass on its propriety. Separate, but combined, appeals were taken by the Borough from the order of the court.

The ordinance describes the land annexed, in part, as follows: 'Beginning at a corner on the Southerly side of the State Highway * * *, at the intersection of the Northerly side of Car Avenue and Wardan Street * * * [subsequent calls follow, not in dispute here, leading to the last call]; Thence continuing along the Southerly side of State Highway on a curve to the right with a chord on a course of South 71 degrees 27 minutes East 593.63 feet to the place of beginning.' The description contained in the ordinance corresponded

[ 169 Pa. Super. Page 132]

    exactly with the description contained in the deed under which the Realty Corporation took title.

One difficulty arises out of the physical fact that the corner at the intersection of the northerly side of Car Avenue and Wardan Street is 7.22 feet south of the southerly side of the State Highway. All parties agreed that the portion of the description establishing the beginning point necessarily means that such point is at the corner aforesaid, where an iron pipe is installed, having been placed there at the time the Realty Corporation acquired title, and cannot mean that the point is actually located on the southerly side line of the State Highway. The latter construction is contrary to physical facts. The 14th finding of the court below embodies this agreement as to the beginning point and is undisputed here: '14. The point of beginning * * * of the land described in the ordinance, to-wit, 'the intersection of the Northerly side of Car Avenue and Wardan Street * * *' is not 'on the Southerly side of the State Highway * * *,' but is 7.22 feet distant therefrom.'

An added difficulty stems from the use of the phrase, 'along the Southerly side of State Highway,' found in the final call of the description. The hearing court found as a fact, in disregard of the recital of a course and distance 'to the place of beginning,' that the line intended by the last call was one coincident with the southerly side of the State Highway. According to its reasoning, the northern boundary does not terminate at the intersection of the northerly side of Car Avenue and Wardan Street (the place of beginning as per finding No. 14), but rather at a point in the southerly side line of the State Highway 7.22 feet from the intersection. The foregoing is derived from finding of fact 19: 'Both the description and the map indicate that the northerly boundary of the property of the Dale Realty Corporation is the southerly

[ 169 Pa. Super. Page 133]

    side of the State Highway.' It is also implicit in finding of fact 15: 'The last course * * * fails to close the description and any survey. The chord extends from the beginning of the curve to the corner of Car Avenue and Wardan Street, but the southerly side of the State Highway at that corner is distant 7.22 feet from it.' Thereby is raised the broad question for determination in this appeal. Stated, in a general way, it is whether the lower court correctly construed the description of the land annexed as set out in the annexation ordinance. If it did, then disputed findings of fact, viz., 21 -- 'The Dale Realty Corporation is but one of three freeholders in the territory sought to be annexed by the borough' -- and 22 -- 'The petition requesting annexation is not signed by a majority in number of all the freeholders of the territory to be annexed' -- must stand and the order declaring the illegality of the ordinance must be affirmed. 'Any borough may, by ordinance, annex adjacent land situate in a township of the second class in the same or any adjoining county, upon petition. ...


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