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STARKEY v. PHILADELPHIA. (11/24/59)

November 24, 1959

STARKEY, APPELLANT,
v.
PHILADELPHIA.



Appeals, Nos. 289 and 290, Jan. T., 1959, from decree of Court of Common Pleas No. 1 of Philadelphia County, March T., 1958, No. 547, in case of Austin C. Starkey et al. v. City of Philadelphia et al. Decree affirmed. Equity. Before CHUDOFF, J. Adjudication filed dismissing complaint; plaintiff's exceptions to adjudication dismissed and final decree entered. Plaintiffs appealed.

COUNSEL

I. Raymond Kremer, with him Robert S. Maerz, and Rush & Kremer, for appellants.

David Berger, City Solicitor, with him Shirley S. Bitterman and James L. Stern, Deputy City Solicitors, and Alan Miles Ruben, Deputy to the City Solicitor, for City of Philadelphia, appellee.

Howard E. Stern, with him Milton C. Sharp, and Edward L. Snitzer, for Redevelopment Authority of the City of Philadelphia, appellee.

Walter Stein, with him Berger, Stein and Kline, for Philadelphia Industrial Development Corporation, amicus curiae.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Bell

[ 397 Pa. Page 514]

OPINION BY MR. JUSTICE BELL

The plaintiffs instituted this action in Equity in which they claimed a reversionary interest in certain lands taken by the City in eminent domain proceedings.

The plaintiffs contended that the City never acquired a fee simple title but only a base or determinable fee; that the lands were condemned for airport purposes and are now not used for airport or any other public purpose; that the City now proposes to convey the lands to private persons for private industrial purposes and has therefore abandoned any public use of these lands; and that the limited or base fee title of the City has therefore terminated.

Plaintiffs contended in the alternative that even if the City acquired a fee simple title to their land, the

[ 397 Pa. Page 515]

City took the land in anticipation of its increased value, changed the zoning and thereafter sold the land for an enormous profit, and consequently holds such profits in trust for the benefit of plaintiffs. Plaintiffs support this conclusion first under the theory of fraud, and secondly on the theory of unjust enrichment. The lower Court entered a decree dismissing the complaint.

Plaintiffs' first contention, indeed the real basis of their claim is that the City took their land (88 acres) under and by virtue of an ordinance dated December 18, 1945, which in turn was passed under and by virtue of the authority of the Airport Zoning Act of April 17, 1945, P.L. 237, § 14, which grants the City the power to acquire air right aviation easements or other interests in the property necessary to effectuate the purpose of the Act, i.e., to provide the necessary aviation "approach" protection. In other words, the 1945 Act authorized the acquisition of flight zones and other easements or base fees. If the taking was under the 1945 Act, the City would have acquired only a flight easement or a base fee (sometimes called a determinable or qualified or conditional fee) and if the easement were abandoned by the City it would be extinguished, and if the purpose or use for which the land was acquired was abandoned, the land would revert to the former owners, or their heirs or assigns, namely, the plaintiffs. Eagan v. Nagle, 378 Pa. 206, 106 A.2d 222; Loechel v. Columbia Borough School District, 369 Pa. 132, 85 A.2d 81; Leach v. Philadelphia, Harrisburg & Pittsburgh Railroad Company, 258 Pa. 518, 102 A. 174; McClure v. Monongahela Southern Land Co., 263 Pa. 368, 107 A. 386; Slegel v. Lauer, 148 Pa. 236, 23 A. 996; cf. also London v. Kingsley, 368 Pa. 109, 81 A.2d 870; 31 C.J.S. 22-23. On the other hand, the City contends that it acquired these lands in fee simple by condemnation under the Ordinance of December 18, 1945, which in turn was passed under

[ 397 Pa. Page 516]

    and by virtue of the authority of the Act of ...


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