Winger v. Aires

Concurring Opinion by

Mr. Justice Allen M. Stearne:

This bill in equity was brought by the owners of a tract of land in Lancaster County seeking to enjoin the School Directors of the Borough of Ephrata from making any use of the land pursuant to a resolution condemning it for school purposes. The learned court below found that the School Board had acted properly within its discretion in condemning the land and dismissed the bill. This appeal followed.

I agree that the action of the School Board cannot be sustained, but my reason for so deciding is entirely different from that stated in the majority opinion. I am in full accord with the following statement in the opinion of the learned court below: “The power to select school sites is vested by the legislature in the school districts, and their judgment in the matter will not be disturbed unless there is a well-founded abuse of dis*249cretion: Lamb v. Reading, 234 Pa. 481 (1912); Hibbs et al v. Arensberg et al., 276 Pa. 24 (1923). [See also: Campbell v. Bellevue Borough School District, 328 Pa. 197, 202, 195 A. 53, and Downing v. Erie City School District, 360 Pa. 29, 34, 61 A. 2d 133.]

“In the instant case, the personnel of the defendant school board comprises a group of outstanding professional men, bankers and business men from the defendant school district. The testimony discloses that they made serious study and investigation before selecting plaintiffs’ property for school purposes; that they had a survey made of the additional families, the increase in population, and the number of children of kindergarten age, taking into consideration the necessity of sufficient land for future expansion and deciding that the plaintiffs’ land was the most practical location in proximity to the borough and its streets, and yet with little or no hazardous traffic conditions. The vote was by a majority vote of all of the members of the board. The site was approved by the County Board and by the State Council of Education; and the survey made revealed that it is desirable because of its geographical location in that it is well related to the community to be served for future expansion, and is readily accessible to all pupils who are to attend the school to be constructed on it.”

It requires a clear showing of abuse of discretion to justify setting aside the judgment of the School Board, the State Council of Education, and the Court of Common Pleas of the County in which the School District lies. It is not an abuse of discretion for the School Board to select the most suitable tract of land for its purposes and then purchase or condemn such land as a tract without computing the precise acreage which is required. Such mathematical accuracy in the determination of the area of ground required for school *250purposes is neither necessary nor desirable. In the present case, such a procedure might have resulted in leaving the property owners possessed only of useless scraps around the border of the tract after the heart of their land had been carved out and taken from them. Each member of the School Board testified to the pressing need for expansion of the facilities of this School District which had been made the subject of careful study by the Board. They referred to an enlarged elementary school, a proposed junior high school, a playground, and an athletic field. All of these are “proper school purposes” within the meaning of the Act of March 10, 1949, P. L. 30, sec. 703, 24 PS 7-703, from which the School District derives its power of condemnation. Had the School Board condemned the land “for proper school purposes”, I would be of the opinion that they had acted within the limits of their discretion in so doing even though they could not at the moment present detailed plans describing the use to which each acre of the tract would be put. We should not declare illegal foresightedness in providing for future expansion.

The weakness of the Board’s position lies in the narrow wording of the condemnation resolution which purported to “condemn for the purpose of erecting thereon and furnishing and equipping of an elementary school building for the School District . . .” (emphasis supplied). It is well-settled that the exercise of the power of eminent domain is always construed strictly against the condemnor: Lance’s Appeal, 55 Pa. 16, 26; Lazarus v. Morris, 212 Pa. 128, 131, 61 A. 815. The condemnation must be for a public purpose (Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 54 A. 2d 277), and if the land is not used for the public purpose for which it was taken it reverts to the original owner: Lazarus v. Morris, supra; Citizens *251Electric Co. v. Susquehanna Boom Co., 270 Pa. 517, 113 A. 559; Wentz v. Philadelphia, 301 Pa. 261, 271, 151 A. 883. It is for this reason that there is no merit in the argument of appellants that the School Board proposes to resell whatever portion of this land it does not require for school purposes. The School Board would be without power to make such a sale. Should they attempt to do so, ownership of the land would revert to the complainants. Since the evidence utterly fails to support any theory that the entire tract of land condemned is required for an elementary school building, the resolution of condemnation must be held ineffective. Such resolution was not broad enough in terms to embrace all the proposed uses.

For this reason, and for this reason alone, I concur in the decree of reversal.

Mr. Justice Jones joins in this concurrence.