Commonwealth v. Connellsville Borough

Opinion by

Mb. Justice Mitchell,

The ownerof the site in laying out the town of Connellsville, designated the land now in controversy as “ public ground ” in the following terms, “ The space left opposite the ferry and fronting oh said river as represented in the plan and distinguished by public ground and Water street, shall be and continue free for the use of the inhabitants of the said town and for travelers who may erect thereon temporary boat yards, or may from time to time occupy the same or any part thereof for making any vessels and other conveniences for the purpose of conveying their property to and from said town.”

It is undisputed that this was an irrevocable dedication to public use, and that the private complainants as purchasers of lots fronting on this public ground have a special interest in the use to which it may be put, in addition to the interest of the general public represented by the attorney general. The question in the case therefore is the nature of the use implied in the grant.

The general rule is thus stated by Dillon, largely from the Pennsylvania cases, “ where the words ‘ public square ’ are used on a plat, this is an unrestricted dedication to public use, and the use varies according to circumstances to be judged of and directed by the proper local authorities subject to the control of the laws and the courts: ” 2 Dillon on Municipal Corporations, (ed. 1890,) sec. 645. The ordinary and most frequent uses as enumerated by Justice Rogebs in Rung v. Shoneberger, 2 Watts, 23, are as “sites for the erection of buildings for the use of the public, such as courthouses, market houses, schoolhouses, and churches; sometimes they are designed as ornaments and at others for the promotion of the health of the inhabitants by admitting a free circulation of air.” To these might be added, especially in the earlier dedications, commons for pasture, public pounds for stray animals, even under some conditions, common dumping grounds, or ■ as in the present ease common landing places for those using the river. All or any of these uses would come within the general purview of a dedication as “ public ground,” and would be such as “ under usage and custom would be deemed to have been fairly in contemplation at the time of so laying out and selling lots in the plan Com. v. Beaver Boro., 171 Pa. 542, 557. As population increased and the habits and occupations of the people changed, one or more of these uses might decline or cease, or on the other hand become more prominent and to some extent displace the others. The recognition and provision for such changes are matters for the local authorities. In Com. v. Beaver, supra, the borough council in order to avoid sacrifice of a line of trees planted by citizens for shade or ornament made a change in the use of the public square, by devoting part of it to a roadway for driving. It was held to be within their discretion. “ The council can regulate, care for and improve the public squares .... in any way not inconsistent with the proper public use: ” Com. v. Beaver Boro., supra., p. 559.

In the present case the dedication is in the most general terms as “ public ground.” It is not required to be left an open space, as in some of the cases, nor is there any restriction against any use fairly to be called public, except so far as may be inferred from the particular use specified in the grant to travelers for temporary boat yards, etc. Whether this could be entirely taken away we need not consider. The court below has found that such use has ceased in fact, and there is no one here complaining in the character of a traveler deprived of his privileges in that regard. Even if there were, it would hardly seem that he could complain of an encroachment that only proposes to occupy one thirteenth of the lot. From the photographs submitted and statements made at the argument, it appears that as the river transportation and business declined, this ground became neglected and for a long time past has been used practically only as a dumping ground. It was clearly within the discretion of the council to lay it out as a park, and improve and ornament it as such. That is the public use which appellants claim should be made of it. But public buildings are equally within the purpose of the dedication, and in fact are the most prominent use to which such grounds are commonly devoted and upon which the question has most frequently come before the courts. See Mahon v. Luzerne County, 197 Pa. 17. The adaptation and use of the ground for one or more public purposes, and its regulation accordingly are within the discretion of the public authorities so long as they do not transgress the terms or limitations of the original grant. Whether a preference given by such authorities to one or more of several permissible uses, is reasonable or not must be determined in each case, by its own circumstances. The ground proposed to be occupied by a permanent building in the present case is only one thirteenth of the whole lot, and the rest is to be improved and made a credit to the city. This is not only within the discretion of the council, but was found by the learned judge below to be a wise exercise of it.

Decree affirmed with costs.