In re Passage of Ordinance 4354

361 A.2d 458, 26 Pa. Commw. 1, 1976 Pa. Commw. LEXIS 1155

• Court: Commonwealth Court of Pennsylvania
• Decided: August 4, 1976
• Docket: Appeal, No. 55 C.D. 1976
• Status: Published

Opinions

Opinion by

Judge Crumlish, Jr.,

David L. Baird and his wife, Linda Z., together with Martin Goodman (Appellants) seek review in this Court from a final order of the court of common pleas which denied and dismissed, in part, their appeal from the passage of Ordinance 4354 by the Council of the City of Altoona (City) vacating the dedication of Kenyon Boad to the City.¹

Appellants contend “that if certain authoritative acts by a municipality are sufficient to imply the acceptance of a street, then a reservation in an ordinance of vacation to do the very same acts from which courts have concluded an implied acceptance negates the intent to vacate.” We disagree.

The proposition that a municipality, after accepting a dedicated road for all purposes, may vacate the road for purposes of public travel while maintaining a utility easement, is one of first impression.

After reviewing the record and the case law,² we have no doubt that Goodman dedicated Kenyon Eoad, ‘ ‘ [h] owever, like any contractual offer, it must be accepted by the municipality for the purpose offered in order to constitute.a complete dedication”; Tri City Broadcasting v. Howell, 429 Pa. 424, 426, 240 A.2d 558 (1968), and we agree that the City accepted the dedication.

What we are confronted with here is whether the City, in vacating Kenyon Road, can reserve to itself an easement extending its length and width “for the construction, maintenance and operation or reconstruction of utilities in, through, over or under the same.” Phrased differently, did the City Council, abuse its discretion by enacting the vacation ordinance! We will not inquire into the City’s motives for the vacation but we will review its action to determine if it has abused its discretion. Titusville Amusement Company v. Titusville Iron Works, 286 Pa. 561, 134 A. 481 (1926).

In Illinois ex rel. Greer v. City of Chicago, 154 Ill. App. 578 (1910), the First District Appellate Court of Illinois³ held that an ordinance vacating portions of a street which, contained as a proviso the right to maintain sewer and water pipes was operative as to the vacation but invalid as to the reservation. In the case at bar, we have a similar situation. While we are not bound by the decision of the Illinois Court, we find its holding persuasive.⁴ Ordinance 4354 is unequivocally an action by the City Council to vacate the road. If the City had wished to utilize the road for other purposes, it should have determined its needs before it passed the vacation ordinance containing the easement reservation. Being unable to reconcile this reservation with the City’s clear intention of vacation, we hold that Ordinance 4354 is valid except as to the easement provided for in Section 2 of the Ordinance.

Order

And Now, this 4th day of August, 1976, the order of the Court of Common Pleas of Blair County is hereby affirmed except as to the easement provided for in Section 2 of Ordinance 4354, which is hereby declared invalid.

1 The order of the trial court provided: “Now, this 19th day of December, 1975, for the reasons set forth in the Opinion above, the instant appeal is dismissed and denied insofar as the vacation of Kenyon Road, from it’s [sic] intersection with Ruskin Drive to the city line, is concerned. As to the portion of the 175-foot strip, known as Kenyon Road, which lies in Logan Township, the appeal is sustained and the city’s Vacation Ordinance No. 4354 is declared to be invalid and of no effect.”

2 For a synopsis of “Dedication” in Pennsylvania, see Horsham Township v. Weiner, 435 Pa. 35, 255 A.2d 126 (1969), and Coffin v. Old Orchard Development Corp., 408 Pa. 487, 186 A.2d 906 (1962).

3 The Supreme Court of Illinois remanded this matter to the First District Appellate Court. For the prior history of this case, see People v. City of Chicago, 238 Ill. 146 (1910).

4 See generally 11 E. McQuillen, Municipal Corporation, §30.185 (c) (3rd ed. 1969).