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APPEAL FROM PASSAGE ORDINANCE 4354 CITY ALTOONA (06/05/78)

SUPREME COURT OF PENNSYLVANIA


decided: June 5, 1978.

IN RE APPEAL FROM PASSAGE OF ORDINANCE 4354 OF THE CITY OF ALTOONA, PENNSYLVANIA, APPELLANT. IN RE DAVID L. BAIRD AND LINDA Z. BAIRD, HIS WIFE, AND MARTIN GOODMAN, AND WILLIAM T. HOWE, BETTY L. HOWE, JANET MARTIN SCHREIBER, THOMAS O. MARTIN AND DOROTHY V. MARTIN

No. 59 March Term, 1977, Appeal from the Order of the Commonwealth Court, 55-CD-1976, Affirming and Modifying the Order of the Court of Common Pleas, Blair County, at Civil Action No. 328, October Term, 1974.

COUNSEL

John M. Elliott, Constance B. Foster, John F. Stoviak, Dilworth, Paxson, Kalish & Levy, Philadelphia, N. John Casanave, Altoona, for appellant.

Beth B. Croyle, Goodman, Notopoulos & Silverman, Altoona, for Baird and Goodman.

Paul S. Foreman, Altoona, James S. Routch, Patterson, Evey, Routch, Black & Behrens, Hollidaysburg, for William T. Howe, Betty L. Howe, Janet Martin Schreiber, Thomas O. Martin and Dorothy V. Martin.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, former J., did not participate in the decision of this case. Roberts, J., filed a dissenting opinion in which Nix, J., joins.

Author: Pomeroy

[ 479 Pa. Page 255]

OPINION OF THE COURT

We are called upon to decide whether or not a municipality which has acquired a street by dedication may, when later it vacates the street, reserve to itself an easement for utility lines within the boundaries of the vacated street. We agree with the Commonwealth Court*fn1 that on the facts of this case, the question must be answered in the negative.

The record discloses that in 1951 Martin Goodman purchased a tract of land located in the City of Altoona and some six years later submitted to the City Planning Commission a proposed subdivision of the property. Included in the subdivision plan was a short street known as Kenyon Road which provided access into the subdivision area. While the proposed plan was under consideration by the Commission, a sanitary sewer was constructed along the right-of-way of Kenyon Road pursuant to an agreement entered into between Goodman and the City. Thereafter, the plan was

[ 479 Pa. Page 256]

    approved and filed by the Planning Commission and accepted by the City.*fn2

The present controversy began in December of 1974, when, in response to a petition of citizens who owned land abutting on Kenyon Road, the City of Altoona passed Ordinance 4354*fn3 vacating that road. The ordinance did more

[ 479 Pa. Page 257]

    than vacate the street, however; it also reserved to the City an easement running the length and breadth of the road for the construction, maintenance and operation of utilities therein.*fn4 Goodman and other owners of property abutting the vacated street contested the validity of the ordinance, and the action of City Council in adopting it, to the court of common pleas. See Section 2920 of the Third Class City Code, Act of June 23, 1931, P.L. 932, art. XXIX (as amended), 53 P.S. ยง 37920. Following a hearing, that court upheld the ordinance*fn5 and a further appeal was taken to the Commonwealth Court. The Commonwealth Court reversed in part, voiding that provision of the ordinance which reserved to the City an easement for utility purposes in Kenyon Road. We then allowed the present appeal. We affirm.

Dedication

The general principles of dedication of land were restated by this Court in Horsham Township v. Weiner, 435 Pa. 35, 41-42, 255 A.2d 126, 129 (1969):

[ 479 Pa. Page 258]

"'Dedication of land results when a landowner offers property for public use and it is accepted by or in behalf of the public . . . the dedication largely depends on the intention of the owner of the land.' Coffin v. Old Orchard Development Corp., 408 Pa. 487, 491, 186 A.2d 906 (1962). 'Dedication has a partial analogy to a contract and requires a consideration of the elements of offer and acceptance. The offer of dedication may be made in a number of ways. It may be made by the express declaration of the party or by acts, deed or plat. . . . Dedication rests upon the intention of the owners, and the circumstances must indicate an abandonment of the property to the community. [Citing cases.] No particular formality is requisite to constitute a dedication upon the part of the owner. Any act which clearly indicates an intention to dedicate is sufficient.' Vendetti Appeal, 181 Pa. Super. 214, 220, 124 A.2d 448 (1956), quoted with approval in Coffin v. Old Orchard Development Corp., supra, 408 Pa. at 491-92, 186 A.2d 906."*fn6

Dedication of a public street does not invest the municipality with a fee title to the land on which the roadway rests. What the municipality acquires is the right to use, maintain, regulate and control that land as a street or road for the benefit of the public. Stated more succinctly, what the public obtains is a right of passage; the fee continues to be in the owner or owners of the land. See, e. g., Horsham Township v. Weiner, supra; Hoffman v. Pittsburgh, 365 Pa. 386, 75 A.2d 649 (1950); Versailles Twp. Authority v. McKeesport, 171 Pa. Super. 377, 90 A.2d 581 (1952). As we said in Hoffman v. Pittsburgh, supra :

[ 479 Pa. Page 259]

"'Where land is dedicated for street purposes by the owner and accepted by the municipality, such action is equivalent to a taking (10 R.C.L. 89, 91), and the property so taken may not lawfully be applied to another and distinct purpose by the municipality unless it be a public use not inconsistent with its use as a highway. In Sterling's App., 111 Pa. 35, 40, 2 A. 105, we said: "By appropriating land for the specific purpose of a common highway, the public acquires a mere right of passage with the powers and privileges incident to such right. The fee still remains in the landowner notwithstanding the public have acquired a right to the free and uninterrupted use of the road for the purpose of passing and repassing; he may use the land for his own purpose in any way that is not inconsistent with the public easement. He may, for example, construct underneath the surface passageways for water and other purposes, or appropriate the subjacent soil and minerals, if any, to any use he pleases, provided he does not interfere with the rights of the public. In other words, the only servitude imposed on the land is the right of the public to construct and maintain thereon a safe and convenient roadway, which shall at all times be free and open for public use as a highway." In Dillon on Municipal Corporations, 5th ed., section 1176, it is said: 'Not even the Legislature can authorize the condemnation of private property for other than a public use; hence the appropriation of a street to a private purpose cannot be justified, even by legislative authority.'" 365 Pa. at 394-395, 75 A.2d 649 at 652-53, quoting Ormsby Land Co. v. Pittsburgh et al., 276 Pa. 68, 119 A. 730 (1923).

[ 479 Pa. Page 260]

A municipality which accepts a dedicated street is not, however, restricted in its use of the street to the public's "right of passage" above; the municipality is entitled to make any additional use of the property consistent with its character as a public street. So long as the additional use constitutes no additional burden upon their properties, the abutting property owners are not harmed and are entitled to no damages by reason of such ancillary use. Pittsburgh Page 260} National Bank v. Equitable Gas Company, 421 Pa. 468, 220 A.2d 12 (1966). Nor does dedication impose upon a municipality a duty to maintain the roadway in perpetuity. Dedication, and acceptance thereof, requires only that the municipality make proper and conforming use of the dedicated land for as long a period as such designated use continues to serve the public interest. Payne v. Kassab, 468 Pa. 226, 361 A.2d 263 (1976). Hence, where the purposes for which the land was dedicated no longer exist or the public is no longer benefitted by such use, the municipality then has the power, and indeed sometimes the duty, to vacate the road. See G. C. Murphy Co. et al. v. Redevelopment Authority, 458 Pa. 219, 326 A.2d 358 (1974); Titusville Amusement Co. v. Titusville Iron Works, 286 Pa. 561, 134 A. 481 (1926). See also City of McKeesport v. McKeesport & Reynoldton Passenger Ry., 2 Pa. Super. 242 (1896).*fn7

Ordinance 4354

From the foregoing discussion it is clear that in 1974 the City of Altoona had both the power and the duty to vacate Kenyon Road, a public street of the City, by enactment of an appropriate ordinance if the City Council deemed such action to be in the public interest. This is a normal function of city government, and judicial intervention is proper only where it appears that there has been an abuse of discretion or some clear violation of law in the exercise of that function. See, e. g., Goodman Appeal, 425 Pa. 23, 227 A.2d 816 (1967); Blumenschein v. Pittsburgh Housing Authority,

[ 479 Pa. Page 261379]

Pa. 566, 109 A.2d 331 (1954); Titusville Amusement Co. v. Titusville Ironworks, supra. The claim of appellees is that the City of Altoona could not legally vacate that road in the interests of the public and at the same time reserve to itself an easement extending throughout the area of the road for "the construction, maintenance and operation or reconstruction of utilities in, through, over or under the same," as ordinance No. 4345 provided. We agree.

When the public right to use Kenyon Road was validly terminated by the City of Altoona, the property reverted automatically and simultaneously to the abutting owners. See, e. g., United States v. Certain Land in State of New Jersey, 439 F.2d 670 (3d Cir. 1970); Cohen v. Simpson Real Estate Corporation, 385 Pa. 352, 123 A.2d 715 (1956); Peterson Trustees of Second Presbyterian Congregation of Pittsburgh v. Public Parking Authority of Pittsburgh, 383 Pa. 383, 119 A.2d 79 (1956); Chambersburg Shoe Manufacturing Company v. Cumberland Valley Railroad Company, 240 Pa. 519, 87 A. 968 (1913). The abutting owners are entitled to their full reversionary interests which the City may not dilute by imposing upon the dedication a burden not bargained for or contemplated; the dedication of Kenyon Road was for the purpose of affording the public a right of passage -- not to benefit utility companies or their customers. Although an easement for utilities in and along Kenyon Road may not have been incompatible with its use as a roadway and would not have interfered with rights of the owners of the underlying fee, as long as the roadway was in use, Pittsburgh National Bank v. Equitable Gas Company, supra, there is no reason to suppose that the easement for utilities would be consistent with the purposes for which the land could now be used by the abutting owners after the cessation of the dedicated use.

In sum, we hold that when Altoona terminated the use for which the land was dedicated, it could not at the same time reserve the right to an ancillary use not stipulated for in the original dedication. See, e. g., Mayor & Council of Rockville v. Geeraert, 261 Md. 709, 276 A.2d 642 (1971);

[ 479 Pa. Page 262]

A.2d 126 (1969). The landowner yields his right to enjoy a private street but receives all the benefits accruing from public maintenance of streets, including repair, cleaning and utility services. The municipality undertakes the obligation to maintain the street in a safe and usable condition and in return has public use of a street which otherwise would be available exclusively to private landowners. There is no reason to believe that appellees, or landowners in general, dedicate a street with the understanding that once a municipality withdraws from some of the obligations and corresponding benefits of acceptance, it will withdraw from all. Rather, the public and the abutting landowners both have much to gain if the municipality may reserve an easement for utility usage. Thus, there is good reason to believe that if the landowner has any expectation at all, it is that the city may continue to derive some benefit from the street so long as he receives value in return for the benefits the municipality retains.

The majority's all or nothing attitude will deter municipalities from accepting streets because they rightly will calculate that the benefits to the public from acceptance will not match the costs. Conversely, the majority's approach imposes upon a municipality the costly burden of maintaining a street which it believes unnecessary for public travel although of use for utility services. It is not likely that either of these consequences was within the expectation of the parties.

When, as here, the parties' intent cannot be ascertained, the agreement should be construed in a manner which comports with their likely intent and with public policy. Here, both goals are furthered by a conclusion that a municipality may, in the absence of an intent to the contrary, reserve an easement for utility usage on a street the municipality proposes to vacate.

Perhaps because the truth of this conclusion has for years been assumed, the issue has received little judicial attention. The only case to the contrary is Illinois ex rel. Greer v. City of Chicago, 154 Ill.App. 578 (1910). The Supreme Court of

[ 479 Pa. Page 264]

New Jersey, however, has stated that "a municipality has the power, and under certain circumstances the duty, to append a condition to a street vacation to assure that the land thus relieved of the public easement will be employed for the . . . general public interest." Palisades Properties, Inc. v. Brunette, 44 N.J. 117, 139, 207 A.2d 522, 536 (1965). Neither decision provides a persuasive reason for its result. In view of the paucity of authority, no considerations of stare decisis restrain us from establishing a sound rule reflecting reality. I believe the better rule is that a municipality may retain a utility easement in a vacated street unless the parties have otherwise agreed. I would therefore reverse the decision of the Commonwealth Court and reinstate the order of the court of common pleas.


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