Johnson v. Delaware Co. , 82 Pa. Super. 285 ( 1923 )

Argued November 20, 1923. Appellants filed their bill to restrain defendants from assessing certain land for county, borough and school taxes, averring that the land was maintained "for the use of the public as a place of recreation," and therefore exempt as a public charity by the Act of April 9, 1921, P.L. 119. Defendants filed an answer denying both the public use and the title alleged. After hearing on pleadings and proofs, the court dismissed the bill. This appeal challenges that decree on various grounds, only one of which need be considered in the peculiar circumstances of this record. Ordinarily, we should first consider the denial of appellant's title to the land, but in this case, where parties vitally interested in that controversy cannot be brought in and be heard, and where the chancellor has found the fact that the land is not used as alleged, and therefore not exempt, we are constrained to leave undecided the question of title raised, and to base our decision on the finding that "no steps have been taken since Mrs. Crozer's death, by the trustees or by any one for them, to devote the property to the uses for which it was devised, nor is it now used in the manner in which the use was contemplated by the testatrix," i.e. for the public purpose alleged.

As the evidence supported the finding, the decree was right.

Decree affirmed at cost of appellants.