This case was very special and peculiar, not failing within the ordinary judicial decisions upon public squares.
Judge Ewing, a gentleman entitled to great respect, but called In from another judicial district, and not "to the manner born," failed to distinguish between a general dedication (the common case), and one that Is special and local. Beating in mind this distinction, his error will be apparent. Two questions arose, viz.:
1. One on the power of the Town Council of Beaver, over the Squares reserved by the State to herself for Intended public uses.
2. The other on the power of the Council to vacate an original street laid out by the State, and by which she sold lots.
Let us follow the history of legislation, which makes the subject plain. By an Act of March 12, 1783, (2 Smith, L. 63,) passed after a partial extinction of the Indian title, followed by the final treaty at Fort McIntosh in January, 1785, the State reserved to herself, out of the land west of the Allegheny River, appropriated to the Soldiers of Pennsylvania Line, "three thousand acres in an oblong of not less than a mile in depth from the Allegheny and Ohio Rivers, and extending up and down the said rivers from opposite Fort Pitt, so far as may be necessary to include the same; and the further quantity of three thousand acres on the Ohio, on both sides of the mouth of Beaver Creek, including Fort McIntosh."
The town of Beaver is on the site of Fort McIntosh. Fort Pitt and Fort McIntosh were then the nearest points of protection, the country being wild, unsettled, and overrun by Indian incursions.
The purposes. of these joint reservations as stated in the laws were "to raise money," facilitate settlements," "and afford additional securities to the frontiers," by establishing "towns within the several tracts of land hitherto reserved." (Act, September 11, 1787, 2 Smith L., 414; Act, 18 April, 1795, 3 Smith L., 233.)
These were twin reservations, born of the same thought, brought forth in the same law, and intended for the same purpose, as necessary to carry protection and population into a wild, war-trodden and uninhabited territory, and therefore having a common intent and the same interpretation.
Allegheny town was established first by the Act September 11, 1787, (supra). The fourth section is in these words:
"That the President, or Vice-President in Council, shall reserve out of the lots of said town for the use of the State, so much land as they shall deem necessary for a courthouse, gaol, and market house, for places of public worship, and burial of the dead, and without said town one hundred acres for a common of pasture; and the streets, lanes and to alleys of the said town and out lots shall be common highways forever."
Observe the language. It is not "shall lay off so much land for public squares," which would be a general dedication; but it Is, "shall reserve to the use of the State so much land as they shall deem necessary," etc. Notice further, that the reservation is of land, not of squares, and also that the pronoun "they" refers to the President and Council, representing the State, and exercising the power of reservation. Notice again that this reservation is most special and not general. That this was so intended is proved by another fact. In the progress of time the uses enumerated in the Act of 1787, being found to be too few, when the State chartered Allegheny as a city, (Act April 13, 1840, PL., 303,) she provided-"that the right of the Commonwealth to all lands within said city mentioned in the fourth section of the Act of Assembly of the 11th September, 1787, excepting such parts thereof as have heretofore been appropriated by grant and authority of law, is hereby granted and vested in the said City of Allegheny, for such public uses as are recited in said Act, and such other public uses as the Select and Common Councils may from time to time direct and ordain."
This proves conclusively that the State considered that, by the reservation above stated, she still controlled both the title and the uses.
Thus the Act of 1840 enabled other uses to be provided, such as town hall, council chambers, public offices, weigh scales, a library building, etc., which have been added.
Fort McIntosh was abandoned in 1786, and the Beaver reservation, being far from Fort Pitt, and within the Indian incursions, the Legislature waited until 1791 before legislating for this twin reservation. By the Act of 28th September, 1791, (3 Smith, L. 56) the Governor was directed to lay out a town of two hundred acres, and one thousand acres in out lots with this characteristic proviso: : 'Provided always that the Governor shall reserve out of the lots of said town so much land as he shall deem necessary for public uses.
Ovserve again, it is land reserved, not squares, and that the Governor, representing the State, was to exercise the power for the State. Under the Constitution of 1790, the Governor took the place of the President of Vice-President and Council.
Observe also, that the words of the Act of 1787 were before the eye of the penman of the Act of 1791, but instead of enumerating the uses, as in the Allegheny Act of 1787, he accomplishes the purpose by using the plural "uses", thus introducing those omitted in the Act of 1787, and authorized by the city charter of 1840.
The Act of 1791 required the town to be laid out by commissioners. The Governor wrote them, inter alla, "but" you will be pleased to make a particular report to me of the quantity and situation of the land which it will be necessary to reserve out of the town lots for public uses." (See Appendix, Letter, October 3, 1791.) This shows the Governor's understanding of the law.
Daniel Leet, the Surveyor of the District, laid out the town plot in November, 1792, but the Commissioners not attending (the Indian war still continuing), Leet's survey was void. This was made necessary the Act of 6th March-1793, (3 Smith,L. 90), which cured the defect by validating the survey and enacting--'"The Governor shall proceed to make sale of the town lots and out lots contained in said survey, and grant conveyances therefore, in the same manner and under the regulations, exceptions and reservations as are prescribed in the said recited Act of the General Assembly," (viz., 1791).
Here the same thought of a special reservation is preserved, and not a general dedication.
Leet's void plot having marked some of the lots "public square," the Governor proceeded to make the reservations, by adopting these and marking others. (See Secretary Dallas' Letter of 11th March, 1793, Appendix.)
The Governor next proceeded to sell, and appointed three Commissioners for the purpose. (See Appendix for commission, March 12, 1793.) The sales took place in Washington, Pennsylvania.
In the commission the Governor says: I am duly authorized to sell and convey certain town lots contained," etc., "on the terms and conditions In the manner, and subject to the limitations, reservations and restrictions in the said recited Acts contained."
In the fifth Instruction to the Commissioners, the Governor said:
"That the four lots in the center, and the four corner lots of the town plot, marked Public Square, shall be announced as lands declared necessary for public uses, and reserved by the Governor accordingly."
Here the Governor acts again on the same special thought, of a reservation to the State herself, not on a general dedication.
Under Acts of 1793, 1805, 1916 and 1834 the State sold all her lots In Beaver. Now so careful was she of her own rights, and to warn purchasers of them, in each of these Acts she inserted this express provision--- "Excepting those heretofore reserved for public uses." (3 Smith, L, 90; 4 Smith, L. 215; P L. 1816,96: P L., 1834, 487.)
If it were necessary to go outside, another conclusive evidence of the intention of the State is found in the similar reservations at Erie, Waterford, Franklin and Warren, and the legislation relative thereto.
In this legislation from the beginning several things will be noticed:
1. That the State did not lay off and dedicate the squares generally to the public.
2. That she specially reserved them as lands to herself .
3. That she herself specified the uses she deemed proper.
4. That she was in 1791 and 1793 providing for the use
of lands not then in a condition to be occupied immediately.
What makes these conclusions more decisive, is, that the charter of Beaver as a borough, granted so early as 1802, (P. L. p. 116), conferred no power over these squares, while the State waited until 1840 before she disposed of her lands in Allegheny City, by the charter granted to the city.
This being the effect of the laws themselves, we come now to the conclusive fact that the State, not having defined the uses of the squares in the Beaver Act, as she did in the Allegheny law, proceeded Immediately to define the uses -of the Beaver Squares, from time to time, by special laws, viz.:
Act of 12th March, 1800, ( 3 Smith, L. 429, Sec. 17), laying off the territory west of the Allegheny River into counties. It granted 500 acres adjoining Beaver for the use of an Academy in the town of Beaver.
Act February 21, 1803, (4 Smith, L. 12, 13), authorized a suitable building for an Academy to be erected on one of the Public Squares in Beaver.
Act April 2, 1803, ( 4 Smith, L. 9 1), authorized a courthouse gaol, and public buildings, to be built on the Public Squares. A court house and public building were built on one center square, and the gaol on another.
Act March 21, 1806, ( 4 Smith, L. 322), money from sale of the lots, granted to the Academy in said town.
Act February 25, 1813, (6 Smith, L. 29), incorporated the Trustees of the Academy and authorized them to build the Academy. It was built on the southeastern center square, and was occupied many years.
Act March 14, 1814, (6 Smith, L. 132), appropriated the northwestern comer square for a burial ground. It is filled with dead to overflowing.
Act March 29, 1824, ( R L., 149), appropriated part of the southeastern center square to the Presbyterian Congregation. Church built and occupied until 1892.
Act April 10, 1826, (H L., 352), appropriated part of the southeastern center square to the Methodist Episcopal Church. Built in 1829-30; rebuilt in 1867, and still occupied.
Act April 13, 1834, CP L., 449), supplement to the Act ,establishing the Academy in Beaver, recites former laws, and provides for the election of Trustees by the people.
Act May 8, 1855, (P L., 517), authorizes the Trustees of the Academy to "use and occupy the reserved" southeast comer square.
The last Act Judge Ewing thought "persuasive evidence" of the power of the Borough, because the consent of the Borough was required. He was ignorant of the fact that this square falls off suddenly toward the Ohio, so that the location of the buildings was an important matter to the town.
Notice the time and number of these laws, and that their subjects lay in the very line of the uses enumerated in the Allegheny Act of 1787. They disclose how well the Legislature understood that the power to appropriate the uses of the reserved squares remained in the State.
Now let us look at the reasons for this
legislation, and why the State reserved to herself the squares,
and the power to declare their public uses.
These uses certainly were intended for the benefit of the inhabitants
of the town when population came in to occupy it. What were these
uses? Clearly, in 1791, when the Legislature looked forward to
the time when population came in, it contemplated beneficial uses
such as would endure in point of time, and minister to their permanent
welfare. They were to belong to a more advanced state of society,
and not to be engrossed by the crude ideas of beginners, engaged
in the most primitive forms of living. They were to be not mere
pasture fields for early flocks, and short cut roads of men accustomed
only to the methods of the early settlers. Who, in 1791, would
be the best judges of these uses, when no population filled the
plain, and the country was wild and untrodden except by savage
footsteps? What would be the first population? Early settlers,
good people, but very plain men, whose appreciation of public
squares would not be enlightened--men unconscious of a higher
civilization to come, and unlikely to direct its desirable course.
Clearly it was most fit that the State should retain the power and direct the uses until the time should arrive, as in the case of Allegheny City, when a higher class of men, and a more educated body, like the two chambers of Council, should be able to direct the affairs of the town, and more truly appreciated the blessings intended by the State for them.
Then look at the injury an early population might commit. If a Borough Council of six men can run highways over these squares, and pronounce it a public use under the law, it may totally mar the beneficial plan of the State. If useful buildings be needed, such as a public school house, a town hall, a library, a high school, and others belonging to a time of higher classes, highways may prevent their proper arrangement, affect ingress and egress, and deprive of the benefits intended. If the State desire to create a public use, as she has so often done, can the Council anticipate it, or frustrate it, or substitute another? The State has long exercised the power. Does it belong to the Council of six also?
The Council my erect prejudicial works --- a garbage furnace, gas works, weigh scales for hay, straw, horses, cattle, hogs, sheep, etc., and these products and animals may crowd the square.
Nor is it to be supposed to be an unlikely thing. In the year 1800, when my father was a student of medicine at the Medical College of Philadelphia, Washington Square, now one of the most beautiful in the city, on Walnut and Sixth streets, was the pauper burial ground, the "Porter's Field," where hundreds lay upon the "lap of earth," who in life knew not where to lay their heads.
One of the center squares of Allegheny City was a common weighing place, filled with hay and straw wagons, attracting the passer's sight.
The unsuitable character of an early population to determine these uses, will be realized by those who remember the early contests over the running horses, cows, hogs, sheep and geese, and the arrest of the geese by the high constable, and their prison breach at night.
What is to become of the true purpose of the Legislature and the enlightened benefits intended, if the uses of these beautiful public squares can be determined by a small body of persons, varying from year to year, as popular elections sway from side to side?
Clearly, in 1791, the Assembly did not intend to confer this power on a town unbuilt, a population yet to come, unsuited to the purpose, and of slow growth in all those characteristics which entitle men to decide great purposes outlasting their own lives and even those of their children. When the Assembly granted a Borough charter in 1802, it conferred no such power. The Borough law of 1851 does not give the power and cannot be interpreted to destroy the right of the State. She reserved these squares to herself and the power to designate their uses, and the Act of 1851 cannot be used to deprive her of title and right.
Can it be supposed that the Legislature, in 1791, intended to authorize a Council of six, in 1892, to run forty feet off the sides of two center squares to make a street in place of Turnpike alley, (an original highway), by which she sold and conveyed the lots along it? Can it be supposed it intended that private owners should lay off grass plats up to the new street, and occupy not only the route of Turnpike alley but a part of these two center squares?
These center squares, filled with beautiful shade trees, form an ornament attractive to all, beautifying the town and fixing the attention of strangers. They are the breathing places of the town, give it health and freshness, and are the noble gift of ancestors who saw far into the future. On what principle of propriety, of fitness or utility shall a small number of men, no matter how respectable, elected often on the most varied and mistaken impulses, and on pretexts of public interests, sometimes enduring to private gain, be permitted to run streets through these State charities, or plant unsightly structures on them, as popular vagaries may suggest?
These are eight public squares constituting one-eighth of the town plot. The four center squares, Including two streets of 100 feet each, crossing at the center, contain about twelve acres. Now is all this public"land" to be under the dominion of six gentlemen, respectable as they may be, and I regard them all as such? They do not represent the grand idea of the State, when she intended these squares for the gratification, the good, the true benefit of future generations. Why did she receive the 'land?" Why did she designate the uses by law?
We have now arrived at a point where we can perceive the entire misconception of the learned Judge, when he cites numerous authorities on the supposition they apply to the case. They have not the slightest bearing. They apply to cases of a general dedication to the public. But the State made no such dedication. Her dedication was most special and local. She reserved the land to herself, and she declared the uses of it, in the Allegheny Act in terms, and in the Beaver case by numerous special laws. The learned Judge did not know, or did not reflect, upon the circumstances under which the laws of 1787, 1791, and 1793 were passed.
In these years all the country west of the Allegheny River was wild and subject to Indian incursions. James Dickerson, Surveyor of one of the Donation Districts, abandoned his district through fear of the Indians. In May, 1788, General Butler gave notice in the Pittsburgh Gazette, that a band of Chippewas and Ottawas from Detroit were coming. On the 2nd July, 1789, the Pittsburgh Gazette stated that Arthur Graham and Alexander Campbell were killed the evening before within two miles of Pittsburgh. General Harmar was defeated by the Indians in 1790. General St. Clair was defeated by them in 1791. The Indians were not defeated until 1794, by General Wayne; who made his treaty of peace with them in 1795. This treaty was. ratified by the Senate of the United States, December 22, 1795, and the great wave of population broke over the Allegheny River in the spring of 1796.
When the Acts of 1791 and 1793 were passed, of the white men, Beaver plain was trodden only by the scout and the hunter with his trusty rifle on his shoulder. The first sale of the lots in Beaver was in 1795, at Washington, Pennsylvania. Thus the history of the times proves that the dedication of the Squares was not intended to be general, but was of the most special kind.
The learned Judge doubts the power of the Legislature, since the adoption of the new Constitution, to legislate for these squares, citing Article 3d, Section 7. This intimation is unsound. The 2d Section of the Schedule preserves all laws not inconsistent with the Constitution. Under the 7th Section, 3d Article, all special laws continue until they are repealed. The declaration of the uses of these squares is not inconsistent with any part of the Constitution, and though special, the laws relating to them are not repealed. th learned Judge must have forgotten the case of the County of Allegheny, which was held under the very special Act of 1841, extended to Allegheny County, to pay about three millions of dollars damages caused by the riots of 1877. And if all these were insufficient, why cannot the State legislate for the uses of its own property?
In his opinion, the learned Judge attributes certain views of counsel in argument to me. He is mistaken. I have always held, as my former pamphlets show, that the squares were reserved for public uses,but that the power to appoint them rested in the State --- in other words, the uses were special. I was not present at the argument by counsel.
From the foregoing premises it is clear -----
1. That the power to designate the uses of the Beaver Public Squares is in the State and not in the Borough Council.
2. That a highway laid out by the Council on a public square is not a use compatible with the uses intended by law.
Another important question arose in the case, upon the power of the Council to vacate and close Turnpike alley.
The State laid out Beaver on her own reserved land, and sold the lots in the manner of an ordinary vendor. Her contract of sale became impressed with the ordinary incidents of sale. By this contract of sale the highways bounding the lots sold, became incident to the sale, and therefore a contract right, which the State cannot rescind or adeem. It fell within the protection of the Constitutions of the State and United States forbidding contracts to be impaired.
General Robert Moore bought lot No. 120, facing a center reserved square, and bounded by Turnpike alley. Having complied with the condition of the Act of 2nd, March, 1805, (4 Smith, L. 215), by building a dwelling house, he received a patent for the lot. That title vested in me (D. A.) in 183 1. 1 went into possession August is, 1831, and have remained there undisturbed ever since, until 1893. Then the Council laid out the new street on the two center squares, and closed Turnpike alley before my lot, by running a curb and pavement across each end of Turnpike alley, and around in front of me, thus enclosing my lot within a Chinese wall. It was done against my remonstrance to a leading member of the Council, notice to the Surveyor when laying off the work, notice to the President of the Council, and against a special remonstrance to the Council setting forth the special injury it would inflict. This special remonstrance the learned Judge refused to receive in evidence.
Feeling that my title to the use of Turnpike alley, as an open highway, is good by law and the Constitution, and the closing of it illegal, I thought proper to address the Judge on this question only.
I was not of counsel, was not present at the argument, and took no part except to preserve my own property. This pamphlet is written to vindicate the truth, assert the rights of the State, and protect the interests of the people.
Daniel Agnew