Myers v. Borough of South Bethlehem , 149 Pa. 85 ( 1892 )

Opinion by

Mr. Justice Mitchell,

When the early judges of Pennsylvania took the most brilliant and important step in the history of modern jurisprudence, and held, a century in advance of England and our sister states, not only that equity was part of the common law of Pennsylvania but also that it might be administered by the common law tribunals under common law forms, they might well have supposed that the conflict as old as the days of Coke and Ellesmere over the right of equity to control proceedings at law, would thenceforth disappear. But it would seem to be irrepressible. We have in this ease a decree by which a judgment, entered upon a verdict after full trial, and affirmed in this court, is vacated and set aside without any allegation of fraud, accident or mistake, solely by virtue of an act of the defendant subsequent to the judgment.

In support of this result it is argued that a municipal corporation invested with the power of taking property by eminent domain may abandon and discontinue the proceedings at any time before actual possession is taken, and so long as the amount of compensation remains undetermined. For this position Elliott on Streets and Roads, 209, 210, and Dillon on Municipal Corporations, § 608, are relied upon. I have examined both of these works, and the authorities cited in them, and find nothing to sustain the contention here made that the municipality may discontinue after judgment so as to affect the rights of the adverse party. All that Judge Dillon says is-that municipal corporations “may at any time before taking possession under completed proceedings, or before the final confirmation, recede from or discontinue the proceedings they have instituted,” and Elliott similarly says “ the corporation may discontinue the proceedings before final confirmation.” The strongest case cited as authority for this rule is State ex rel. McClellan v. Graves, 19 Md. 351. Under a statute, the commissioners to open a street, in advance of the opening or confirmation of the proceedings to condemn, sold the houses, materials, and parts of lots on the line of the proposed street, and the relator bought. The ordinance was then repealed and the relator applied for a mandamus to compel the commissioners to go on with the condemnation, so as to convey to him the property. The court held, however, that the relator had bought only an inchoate title with notice that the city might abandon. In the opinion it is said, “ The dedication of private property to public use is not complete until the proprietor is paid or tendered the value of his property as ascertained by the inquest. No preliminary step prior to actual payment or tender, so fixes the corporation as to prevent an abandonment of the condemnation or of the enterprise.” For this Graff v. Mayor of Baltimore, 10 Md. 544, was cited and relied on. The city of Baltimore under authority of an act of assembly commenced proceedings to condemn land for water works. The statute provided that the value should be determined by a jury, subject to confirmation by the court and “ such valuation when paid or tendered to the owner shall entitle the city to the estate, use and interest” etc. as if conveyed by the owner. Plaintiff’s land was condemned, but before final confirmation the city repealed the ordinance adopting the plan bj*- which the plaintiff’s land was included. Plaintiff then filed a petition for mandamus for the payment of the valuation, but the court held that as by the statute the city’s title did not accrue until the valuation was paid or tendered, the principle of mutuality required that plaintiff’s right to the money should not vest till the same time, and refused a mandamus, though conceding that the plaintiff might have a remedy by action for any loss or damage sustained. This case in turn was largely rested on Balt., etc. R. R. Co. v. Nesbit, 10 How. 395, where a statute almost identical in terms received the same construction.

These cases contain the strongest expression that I have seen of the municipality’s right to discontinue. They are built up mainly on the language of the statutes, but even accepting the doctrine enunciated as general in its application, it falls far short of sustaining the contention in the present case. Certainly if a tender fixes the limit of the city’s right to discontinue, the judgment of a court upon a verdict should do so. A judgment settles everything involved in the right to recover, not only all matters that were raised, but those which might have been raised. It is not that the borough will owe the amount if, or when, it takes the property, but that it does owe now. All questions of opening, taking etc. are concluded by it, so far at least as the plaintiff is concerned. As regards other parties the way of retreat may still be open, but a plaintiff who has been diligent and pressed his claim to judgment should not be prejudiced by the laches of other property owners on the same street whose claims are still pending. It is doubtless very desirable that the borough should be able to know the full cost of a public improvement before being irrevocably committed to it. As the law was when the report of the viewers or the inquest, confirmed by the court, concluded the proceeding, this knowledge was always attainable in time, and it is to be observed that the text-books and the cases cited are based upon proceedings of that kind. But when the law gave appeals to the individual owners, in which the .verdicts might be different from the awards of the viewers an uncertainty was introduced as to the entire expense. This result was probably unforeseen, but it was inevitable, and the only proper remedy was through legislation. To afford one by holding, as is contended for here, that the judgment was not final between the parties until all the appeals were disposed of, would not only be a violation of fundamental legal principles, but a hardship and injustice to the vigilant owner, and would be giving’ the borough by the indefinite delay of some small claim, an almost unlimited power of practically quashing the proceedings—a power not supported by legal principles, nor founded on any statute. How dangerous such a power might be is well illustrated in the present case. The judgment that plaintiff obtained, and that was affirmed by this court in Weiss v. South Bethlehem, 136 Pa. 294, established his title to the land in question, as against the borough’s claim of a previous dedication to public use. By the decree in the present case this solemn adjudication in his favor is swept away without any error in the trial, and without any new evidence on the subject, and plaintiff’s title is again left open to attack at airy time iir the indefinite future. The inconveniences to the borough of having a public improvement cost more than was contemplated when it was undertaken, are not great enough to satisfy a result so inconsistent with the finality of judgments, and due regard to the rights of property owners. As already said the remedy must be legislative, and for future cases it has been supplied by the act of May 16,1891, § 7, P. L. 78. The present case must be decided on the general principles of law. So far as the present plaintiff is concerned the repeal of the ordinance was of no avail. It did not in any way affect his judgment or his right to execution upon it.

In No. 277 the judgment is reversed, the demurrer to the answer to the rule to show cause why mandamus should not issue, is sustained, and the rule made absolute.

In No. 278, the decree is reversed and bill dismissed with costs.