elaborating, for example, that “Section 4(3) permits the property or proceeds of [a] sale to be applied to another public use ‘[i]n the event the original trust purpose is no longer practicable or possible or in the public interest’ and mirrors the first portion of Section 4 and does not turn on lack of a record of acceptance.”
How later courts described this case
- elaborating, for example, that “Section 4(3) permits the property or proceeds of [a] sale to be applied to another public use ‘[i]n the event the original trust purpose is no longer practicable or possible or in the public interest’ and mirrors the first portion of Section 4 and does not turn on lack of a record of acceptance.”
- explaining that the “lack of a record of acceptance plainly has no application to the first portion.”
- referencing 53 P.S. § 3386 (“Nothing in this act shall be construed to limit or affect the control by a political subdivision of public lands ... acquired by such political subdivision by purchase or condemnation.”)
- elaborating, for example, that “Section 4(3
Written by the judges who cited it.
The opinion
DISSENTING OPINION BY
Judge PELLEGRINI.
Because I disagree with the majority that the public property at issue was donated, I respectfully dissent.
In 1926, the Erie Golf Club conveyed its property to the City of Erie for $1 and its assumption of a $15,000 mortgage. Erie City Council enacted an ordinance authorizing the purchase, and the deed transferring the property was recorded, which included a deed restriction requiring the City to keep and maintain the property as a golf course or a public park. Since 1926, the property has been used as a golf course. The City, because of its fiscal condition, now desires to sell the property.
The City filed a petition to abandon the use of the golf course as a dedicated property under the Donated or Dedicated Property Act (Act), Act of December 15, 1959, P.L. 1772, 53 P.S. §§ 3381-3386. The trial court granted leave to intervene to the Lake Erie Region Conservancy which argued that the common law public trust principles applied. The trial court *615 agreed with intervenors and denied the City’s petition.
On appeal to this Court, the majority reverses the trial court and relies on the Act to conclude that the City was entitled to abandon the golf course. In doing so, it relies on Section 2 of the Act, 53 P.S. § 3382, which provides:
All lands or buildings heretofore or hereafter donated to a political subdivision for use as a public facility, or dedicated to the public use or offered for dedication to such use, where no formal record appears as to acceptance by the political division, as a public facility and situate within the bounds of a political subdivision, regardless of whether such dedication occurred before or after the creation or incorporation of the political subdivision, shall be deemed to be held by such political subdivision, as trustee, for the benefit of the public with full legal title in the said trustee. (Emphasis added.)
In doing so, the majority focuses on the fact that despite no formal record, the property was dedicated. It then looks at Section 4 of the Act, 53 P.S. § 3384, which provides relief that an orphans’ court may allow; specifically, Section 4(4) provides that waiving rights “to such land and buildings as have been apparently dedicated but for which no formal acceptance appears of record ...” Further, Section 4(3) provides that “in the event the original trust purpose is no longer practicable or possible or in the public interest,” the property or the proceeds from its sale may be applied to a different public purpose. Determining that it is no longer practicable or possible to maintain the golf course financially, the majority reverses the trial court’s order. I disagree with the majority because the golf course property was not “donated” but instead was purchased, and, therefore, the Act has no relevance in this decision.
The Act itself does not define the terms “donate” or “dedicate.” However, the dictionary defines “donate” as “to make a gift of; to contribute to a public or charitable cause.” Webster’s Ninth New Collegiate Dictionary 375 (1989). Dedication is defined as “to open for public use.” Id. at 332. In this case, when the golf course property was conveyed to the City in 1926, the City purchased it for $1.00. It was not “donated” as a gift, and there was never any document dedicating the property to the City and its residents for a public use. Instead, the City assumed the debt that was outstanding on the property at that time — a $15,000 mortgage in 1926 — and continued until the present to have to make maintenance payments on the property to the point that it could no longer afford to do so.
Because the property was not donated, the Act is irrelevant and the majority should not have applied it to this case. For this reason, I would vacate the trial court’s decision because it has no jurisdiction to authorize or deny the sale under the Act. If the City wants to sell the property, it has to do so in accordance with the process of selling City land with a deed restriction.
President Judge LEADBETTER and Judge McGINLEY join.