Keifer Appeal

243 A.2d 336, 430 Pa. 491, 1968 Pa. LEXIS 735

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1968
• Docket: Appeal, 18
• Status: Published

Opinions

Opinion by

Mr. Justice Eagen,

This is au eminent domain proceeding.

Appellants own a parcel of land located in Mercer County on the south side of East State Street, which has been part of the state highway system since 1911. In 1964, E. State Street was widened from 33 feet, 16.5 feet of which was south of the center line, to 70 feet, 35 feet of which is south of the center line. The board of viewers, appointed by the Court of Common Pleas of Mercer County on appellants’ petition, determined that the appellants are not entitled to damages because the 18.5 additional feet south of the center line had been dedicated to the public for highway purposes. On appeal, the Court of Common Pleas of Mercer County agreed with the board of viewers that there liad been a dedication which barred appellants from collecting direct damages and dismissed the appeal, but referred the case bach to the board of viewers to assess consequential damages, if any. This appeal followed.

The dedication relied upon to deny appellants direct damages arises from the recording of two plans for “Hermitage Acres,” which includes appellants’ land. These plans show E. State Street as having a right of way 100 feet wide, 50 feet of which is south of the center line. The original plan was recorded in Mercer County on April 4, 1923, and a revised plan was recorded on December 31, 1929. Inasmuch as more than 21 years elapsed between the time when the plans were recorded and the time when the highway was widened and the land offered for dedication was first used by the public, the appellants contend that acceptance of the offers to dedicate¹ is barred by the Act of May 9, 1889, P. L. 173 §1, 36 P.S. §1961. The complete text of that act and its title, which may be considered in resolving any ambiguity, Act of May 28, 1937, P. L. 1019, §54, 46 P.S. §554, is as follows: “An Act relating to unused streets, lanes and alleys. Section 1. Be it enacted, &c., That any street, lane or alley, laid out by any person or persons in any village or town plot or plan of lots, on lands owned by such person or persons, in case the same has not been opened to, or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been, or shall be, laid out.”

The court below held that this statute does not apply to land dedicated for the widening of an existing state highway, relying on State Road, 236 Pa. 141, 84 A. 686 (1912), in which this Court, speaking through Mr. Justice Moschzisker (later Mr. Chief Justice Moschzisker), said: “The statute does not in terms include property given to widen an old street in existence at the time of the dedication of the land, as in this case, nor is there any intimation therein of a purpose to do so.” Id. at 145, 84 A. at 687. The lower court considered this dictum and doubted its correctness, but concluded that it controlled the case and should be followed. Passing the question of whether the statement from State Road, supra, is dictum or an alternative holding, we believe that it interprets the statute correctly and that the statute does not apply in this case for two reasons.

First, the statute provides that any “street, lane or alley” offered to the public which is “unused” or “not opened to, or used by, the public” within twenty-one years of the offer, cannot thereafter be accepted. Assuming that a state highway is a “street, lane or alley,” a strip of land offered to widen a street, land or alley is not separately a street, lane or alley; it is simply a supplemental strip of land. Since the offer of a strip of land to widen a street, lane or alley is not the offer of a street, lane or alley, it is not an offer to which the statute applies.²

Secondly, as the lower court noted, the Act of May 9, 1889, supra, is a statute of limitations. Rahn v. Hess, 378 Pa. 264, 106 A. 2d 461 (1954); Whittaker Appeal, 386 Pa. 403, 126 A. 2d 715 (1956). It is an established principle of statutory construction that an act does not deprive the Commonwealth of any prerogative, right or property, as would a statute of limitations, unless the Commonwealth is specifically named therein or unless an intention to include the Commonwealth is necessarily implied. Interstate Cemetery Co. Appeal, 422 Pa. 594, 222 A. 2d 906 (1966); Hoffman v. Pittsburgh, 365 Pa. 386, 399, 75 A. 2d 649, 654-55 (1950); Baker v. Kirschnek, 317 Pa. 225, 231-33, 176 A. 489, 491-92 (1935) (per curiam). When the act is an expression of “public policy,” however, the general rule does not apply. Pittsburgh Public Parking Authority Petition, 366 Pa. 10, 76 A. 2d 620 (1950). But every statute is an expression of public policy to some extent. If the exception is not to swallow the rule, “public policy” must be limited to the clearest cases. Compare Mamlin v. Genoe, 340 Pa. 320, 17 A. 2d 407 (1941).

The Act of May 9, 1889, supra, does not embody a rule so clearly in the public interest that a court is justified in calling it an expression of “public policy” with the effect that the Commonwealth is bound by its operation without being named therein or included by necessary implication. This conclusion is supported by a glance at the consequences of constructions which include or exclude the Commonwealth. To include the Commonwealth obviously will increase the cost, borne by the public, of condemnation. To exclude the Commonwealth will reduce the cost of condemnation to the public and will not work a hardship on the owners of land offered to the public because they are adequately protected apart from the statute. For example, unless an offer to the Commonwealth has been made irrevocable for special reasons, it can be withdrawn before acceptance. And, in circumstances where injustice would otherwise result, an offer cannot be accepted after an unreasonable delay even though it has not been revoked. See Rung v. Shoneberger, 2 Watts 23 (1833). See generally, Annot., 66 A.L.R. 321 (1930).

Since the statute is not an expression of “public policy,” in the narrow sense, the general rule applies and the Commonwealth is not bound unless specifically named or included by necessary implication. Although the statutory term “the public” could be read to include the Commonwealth, and although “street, lane or alley” could be read to include a state highway, this broad construction is not a matter of necessary implication. Consequently, the Act of May 9, 1889, supra, does not apply against the Commonwealth.

We, therefore, affirm the lower court’s ruling that the appellants are not entitled to collect direct damages. We express no opinion on their right to consequential damages, since the record before us is insufficient to correctly resolve this question.

Order affirmed.

Mr. Chief Justice Bell took no part in the consideration or decision of this case.

1 An offer to dedicate land for a public highway must be accepted for the purpose offered in order to constitute a complete dedication, Tri City Broadcasting Co. v. Howell, 429 Pa. 424, 240 A. 2d 556 (1968).

2 Although an existing street clearly is not “unused,” but, on the contrary, is “opened to, or used by, the public,” it would be improper to reason that the Act of May 9, 1889, supra, does not apply to the offer of a strip of land to widen an existing street because the street, together with the supplemental strip, is used from the moment of the offer and within the 21 year period. The Act of May 9, 18S9, supra, appears to us to provide that acceptance of an offer to dedicate a street is ineffective if it does not occur within 21 years of the offer. The same public use of an existing street which preceded the offer of a strip to widen that street is not an unequivocal act manifesting an acceptance of the supplemental strip. See Milford Borough v. Burnett, 288 Pa. 434, 438, 136 A. 669, 671 (1927). The question of whether there has been an acceptance, which is the relevant inquiry under the Act of May 9, 1889, supra, should be distinguished from the question, which arises only after a decision that there has been an acceptance, of what has been accepted. Thus after it has been determined that public use of part of the width of a strip dedicated for street purposes constitutes an acceptance, then it also may be determined that it constitutes an acceptance of the entire width of the strip. See, e.g., Hawkes v. Philadelphia, 264 Pa. 346, 354-55, 107 A. 747, 750 (1919); Hileman v. Hollidaysburg Borough, 47 Pa. Superior Ct. 41, 51-2 (1911).