Dissenting Opinion
Crumlish, J.,September 1, 1954. — I am compelled to dissent from the order of my colleagues for the following reasons:
First, the record does not warrant an adjudication on the pleadings.
The School District of Philadelphia and Add B. Anderson, secretary, etc., defendants, hereinafter referred to as school district, aver affirmatively in the twelfth paragraph of their answer “On the contrary, it is averred that the purpose of the acquisition of land X by the School District of Philadelphia is to exchange it for land S in order to construct a school building on land S if such an exhange can be made, but that if such an exchange cannot be made, the School District of Philadelphia proposes to construct a school build*540ing on land X.” (Italics supplied.) The school district’s averment being in the alternative it may on trial decide to drop the plan of exchanging land X for land S and elect to condemn land X and to construct a school building thereon. If this should occur, the. school district would have the right to so condemn land X and the question of its right to acquire land S by exchange would become moot. See Broido v. Kinneman, 375 Pa. 568 (1954).
Secondly, the equities of the parties can be balanced only after a full hearing on all questions involved.
Here we have an extraordinary situation and without precedent. The school district is seeking to accommodate the community by providing school facilities which will be adequate and safe in a section of the City of Philadelphia which has built up so rapidly within the last few years that finding a suitable site for a new school presents a serious problem. Defendants, PTC, and Motor Real Estate Company, allied corporations, serve the community by providing long-haul passenger transportation from this section of the city and in connection therewith require depot and parking accommodations for buses in that far-flung section in order to operate the transportation accommodations adequately.
Plaintiff corporation is the lessee of a portion of land X for a term of 10 years from April 30, 1953, with options to renew.
It is important to note that plaintiff acquired the lease of a portion of land X in 1953, when admittedly, from the complaint, the school board, in 1953, was considering the erection of a school in that general location, and was negotiating with PTC. Plaintiff avers the school board wanted land S; defendant school board answers that it originally planned to use land X, but at the request of local residents, undertook consideration of the acquisition of land S. The complaint *541is silent as to plaintiff’s use of the premises. While such averment is not incumbent upon plaintiff, it would shed light on plaintiff’s good faith in securing this lease and bringing this action.
Under such circumstances, a chancellor should be especially careful to hear all the surrounding facts that bring plaintiff into court for equitable relief. The chancellor has a duty to determine whether such relief is sought in good faith before issuing an injunction.
In Messner v. Railway Co., 13 Pa. Superior Ct. 429 (1900) plaintiff alleged in his bill that his consent had not been obtained by an electric street railway company to build a road abutting his property, and asked that defendant be restrained from building the road. The court held, at page 438:
“In the light of the testimony, it is apparent that the plaintiff’s principal purpose in purchasing this property was to harass the defendant company. The case as presented is marked with such questionable methods as to prevent the plaintiff from securing equitable relief.”
Dual questions are raised here. Should defendants be restrained from proceeding in the best interests of the community and plaintiff prevail? Or, should plaintiff be confined to his remedy at law, and defendants be allowed to proceed? These two questions are dependent upon all the facts, and cannot be decided by relying on other authorities that dealt with the taking of property for school purposes where land for such purposes was plentiful or those authorities which limited condemnation under other circumstances. This is a case of first impression and strongly suggests the equitable principle of balancing the equities of the parties. See Heilman v. The Lebanon & Annville Street Railway Company, 175 Pa. 188 (1896).
Thirdly, this can very well be a case where the liberal principles of the Supreme Court of the United *542States applied in United States ex rel. Tennessee Valley Authority v. Welch, 327 U. S. 546 (1946), may control.
When the proposed principle to exchange land X for land S is analyzed, it is not as arbitrary as it may at first seem. The school district has the right to condemn land X to secure a fee simple title. See Public School Code of March 10, 1949, P. L. 30, secs. 703 and 722, 24 PS §7-703, 7-722. Exercising this right and finding that it no longer has need for the ground it could sell and convey to anyone: Haldeman v. The Pennsylvania Central Railroad, 50 Pa. 425 (1865); Wyoming Coal & Transportation Co. v. Price, 81 Pa. 156 (1876); Foust v. Dreutlein, 237 Pa. 108 (1912); Dornan v. Philadelphia Housing Authority et al., 331 Pa. 209 (1938). Let us assume that the school district after condemnation concluded, in good faith, that the ground was not adequate or safely located for school purposes. Under the aforementioned authorities, having a fee simple title, it would be in a position to exchange land S for land X. Thus the package deal which the school district now has under consideration could be effected legally and plaintiff would be left to his remedy at law.
It was said in the course of the argument that if the school district needs land S it should proceed to acquire it by condemnation rather than by exchange. If the school district were to follow this suggestion, there would be nothing to prevent the street railway defendant from condemning land X for its purposes under the Act of June 1, 1907, P. L. 368, sec. 1, 67 PS §1221, and again plaintiff would be left to his remedy at law.
Finally, the problems involved are so numerous and complex, and the interests so varied and weighty, I feel, after viewing the locus in quo, they can be best resolved only after full hearing on the facts and exploration of the legal principles involved.