dissenting.
I dissent. In my view, common sense and public policy dictate the conclusion that a municipality may reserve an easement for utility lines running along a street acquired by dedication and acceptance which it proposes to vacate. The crux of the majority’s opinion is the conclusion that this reservation serves only to benefit utility companies and therefore represents a burden not contemplated by the abutting landowners. This unsupported assertion does not take account of the nature of dedication and acceptance of streets.
Appellees concede that, after it accepts a dedicated street, a municipality may apply the street to any public service and that public services consistent with use of the street as a public thoroughfare include installation of public utilities. Pittsburgh National Bank v. Equitable Gas Company, 421 Pa. 468, 220 A.2d 12 (1966). After vacation no less than before, abutting landowners, and the public, receive a benefit from utility lines running along the street. The majority thus errs when it concludes that reservation of an easement for utility lines does not provide a benefit to either the public or abutting landowners. The real issue is whether the reservation is beyond the contemplation of the parties.
The majority recognizes that dedication and acceptance are contractual in nature in that the abutting landowner and the municipality each give up something in return for something else. Horsham Township v. Weiner, 435 Pa. 35, 255 *263A.2d 126 (1969). The landowner yields his right to enjoy a private street but receives all the benefits accruing from public maintenance of streets, including repair, cleaning and utility services. The municipality undertakes the obligation to maintain the street in a safe and usable condition and in return has public use of a street which otherwise would be available exclusively to private landowners. There is no reason to believe that appellees, or landowners in general, dedicate a street with the understanding that once a municipality withdraws from some of the obligations and corresponding benefits of acceptance, it will withdraw from all. Rather, the public and the abutting landowners both have much to gain if the municipality may reserve an easement for utility usage. Thus, there is good reason to believe that if the landowner has any expectation at all, it is that the city may continue to derive some benefit from the street so long as he receives value in return for the benefits the municipality retains.
The majority’s all or nothing attitude will deter municipalities from accepting streets because they rightly will calculate that the benefits to the public from acceptance will not match the costs. Conversely, the majority’s approach imposes upon a municipality the costly burden of maintaining a street which it believes unnecessary for public travel although of use for utility services. It is not likely that either of these consequences was within the expectation of the parties.
When, as here, the parties’ intent cannot be ascertained, the agreement should be construed in a manner which comports with their likely intent and with public policy. Here, both goals are furthered by a conclusion that a municipality may, in the absence of an intent to the contrary, reserve an easement for utility usage on a street the municipality proposes to vacate.
Perhaps because the truth of this conclusion has for years been assumed, the issue has received little judicial attention. The only case to the contrary is Illinois ex rel. Greer v. City of Chicago, 154 Ill.App. 578 (1910). The Supreme Court of *264New Jersey, however, has stated that “a municipality has the power, and under certain circumstances the duty, to append a condition to a street vacation to assure that the land thus relieved of the public easement will be employed for the . . . general public interest.” Palisades Properties, Inc. v. Brunette, 44 N.J. 117, 139, 207 A.2d 522, 536 (1965). Neither decision provides a persuasive reason for its result. In view of the paucity of authority, no considerations of stare decisis restrain us from establishing a sound rule reflecting reality. I believe the better rule is that a municipality may retain a utility easement in a vacated street unless the parties have otherwise agreed. I would therefore reverse the decision of the Commonwealth Court and reinstate the order of the court of common pleas.
NIX, J., joins in this dissenting opinion.