Gumpert v. Hay

Per Curiam,

It is certainly time that this prolonged litigation, which has resulted in so much strife and perhaps bitterness, should end. Every material fact necessary to a history of the case will be found in Bennett v. Norton, 171 Pa. 221, Mahon v. Norton, 175 Pa. 279, and Mahon v. Luzerne County, 197 Pa. 1. The latter case finally settled the question, as to the authority of the city of Wilkes-Barre to grant and the right of the county to accept in exchange for the old courthouse site, the present, determined on, location. It is not material to decide the exact nature of the estate acquired by the county in the new site; it was an absolute right to use the land for court purposes. It acquired an undisturbed right of possession for a period of 999 years. As held by the learned judge of the court below, the “ whole of the tract has been long since restored to the dominion of the city.” The dominion of the city, as exercised over it by this exchange, is in accord with and not in conflict with any right of the public or individual property owner; nor does it antagonize any sovereignty heretofore exercised, or claimed by the commonwealth.

As to the reservation by the city of the coal under the land, without deciding the legal effect of this reservation, we will not assume, that the commissioners acting for the public of the whole county, would deliberately erect a structure, costing probably hundreds of thousands of dollars, leaving in a third party a right of property worth at most only a few thousand dollars, but yet which carried with it a right to tumble down the costly structure on the surface. Were we called upon to-decide this question now, when it can scarcely be said to be involved in the issue before us, we would be inclined to hold, with the learned judge of the court below, that a proper interpretation of the intent of the grant did not release the grantor from the usual implied obligation of surface support.

But we will not discuss further the objections raised to the conclusions of the court below, except to say in answer to appellant’s fifth assignment of error, that we are of opinion, the transaction was not a purchase of land by the county for courthouse purposes. The necessity to build being established by two grand juries, and their reports being approved by the court, the act of 1901 expressly conferred upon the commissioners authority to accept other public ground as a site for the new buildings. No previous consent of the grand jury to merely a change of location was necessary. In fact, it may be doubted whether the discretion of the commissioners, as to a change of location, could, even with legislative sanction, be usurped by the grand jury. But it is useless to decide this point, for neither the act of 1883 nor that of 1901, undertakes to interfere with the discretion vested in the commissioners by the act of 1834.

The decree of the court below is affirmed.