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MAHAN v. LOWER MERION TOWNSHIP (07/20/65)

decided: July 20, 1965.

MAHAN, APPELLANT,
v.
LOWER MERION TOWNSHIP



Appeal from decree of Court of Common Pleas of Montgomery County, No. 63-12767, in case of Francis A. Mahan and Alice Rolfe Read Mahan, his wife, v. Lower Merion Township.

COUNSEL

Thomas J. Burke, with him Haws & Burke, for appellants.

John E. Forsythe, Township Solicitor, with him A. Gregg Jackson, and Wright, Spencer, Manning & Sagendorph, for township, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Musmanno. Mr. Justice Roberts concurs in this dissenting opinion.

Author: O'brien

[ 418 Pa. Page 559]

Plaintiffs, property owners, appealed from an order dismissing their complaint in equity for lack of jurisdiction. Appellee, on November 20, 1963, enacted an ordinance condemning premises owned by the plaintiffs for use as an historic public park and recreation area and authorized the proper officers of the township to execute a bond to secure payment of damages to the owners.

The plaintiffs, on December 18, 1963, filed a complaint for injunctive relief to restrain the defendant-township from proceeding with the condemnation of their property. Appellants challenge the validity of the proposed condemnation. The court below dismissed the complaint, relying on Balazick v. Dunkard-Bobtown Mun. Auth., 414 Pa. 182, 199 A.2d 430 (1964); Cunfer v. Carbon Airport Auth., 414 Pa. 408, 200 A.2d 768 (1964); and Pgh. Rwys. Co. v. Port of Alleg. Co. Auth., 415 Pa. 177, 202 A.2d 816 (1964).

We held in Balazick that a court of equity has no jurisdiction to determine whether a municipal authority has the right of eminent domain, and we said: "In Schwab v. Pottstown Borough, 407 Pa. 531, 180 A.2d 921, we held that a court of equity had no jurisdiction to determine whether there had been a taking of private property for public use or to assess and award damages for such taking. The decisional point in Schwab was that, under the statutory law of Pennsylvania, a complete and adequate procedure has been provided to guard and protect the constitutional rights of private owners in all condemnation proceedings. See also: Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491; Creasy v. Lawler, 389 Pa. 635, 133 A.2d 178, affirming per curiam 8 Pa. D. & C. 2d 535; Martin v. Creasy, 360 U.S. 219, 3 L. Ed. 2d 1186, 79 S. Ct. 1034. . . . The basic challenge in the equity action is clearly to the right, power and authority of the Authority

[ 418 Pa. Page 560]

    to exercise any right of eminent domain under the circumstances and the resolution of that issue can and should be made only in eminent domain proceedings. As this Court said in Schwab, supra, p. 534: 'It is a commonplace that where the legislature has provided a remedy or procedure, that remedy or procedure is exclusive and alone must be pursued. Jacobs v. Fetzer, 381 Pa. 262, 112 A.2d 356 (1955). See also Smith v. Zoning Board of Adjustment, 407 Pa. 122, 179 A.2d 192 (1962) and Salisbury Township v. Sun Oil Co., 406 Pa. 604, 179 A.2d 195 (1962).'" (Emphasis in original).

We affirmed the dismissal of the plaintiffs' complaint in equity on the ground of lack of jurisdiction.

In Cunfer, supra, we vacated the issuance of a temporary injunction order on the ground that a court of equity has no jurisdiction to determine whether a municipal authority has the right of eminent domain or whether it has properly exercised any right of eminent domain. The plaintiff there brought an action in equity to challenge the validity of the authority condemnation, citing therein Balazick and Schwab.

In Pgh. Rwys. Co., supra, the lower court refused to issue a preliminary injunction to restrain the Port Authority from filing its petition for condemnation. We held that equity did not have jurisdiction to determine whether a municipal authority has the right of eminent domain or whether it has properly exercised any right of eminent domain. These cases stand for the proposition long recognized that equity jurisdiction is not available when there is an adequate ...


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