The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1869-02-17
LEGAL INTELLIGENOE.
FaIrmOunt Park Assessment.

We have before us the petition of owners of
land embraced within the limits of FairmOunt
Park, with whom agreements have been made
by the commissioners OF the Park tor com
pensation 10 be paid to them by the Oaty ,d oI
Philpde phla, for property taken Tor puDhc
use. under the acts of March "a, 1917, ana April
The petitioners pray that In crest on tue sums
due them by agreement shall be paid by the
CITY Cf Philadelphia. "
taken is vested in the city of philadelphia ny
the terms of the act, and compensation 10 the
owners of properly thus appropriated Is To oe
secertained by jury to assess damages, or by
agree ment with the Com mtssionefs. -, 49,
The third section of the act OF Aarcn 20 iS5I'
provides that in any case In which tue Com
10 nissiOners may agree with the owners OF any
part of the ground as to the price, they shall
report the same to the Court of Quarter 3 IS
sions, ard IL confirmed and approved by the
Court, 1t shall Re conclusive on the city. Add
by tho six ieenth section of the supplement OF
April 10, 1863, 10 Is further provldedi-Whensver
an V reL Il OF The Dom mission ers or OF the jury
shall have been confirmed by the Court, the
valuation made shall DO forth VII paid by the
city of Philadelphia,
II will thus be seen that the &C lon OF the
Com isloners in their negotiation and agree
ment with the owners OF property was not 10 oe
regarded as conclusive, but was made subject
and such agreement was not binding on the
city until confirmed by the Court If rel ected
hsnH SIS anu hsannent nne nesotiattion win tne
Com misslopers or to n Jnry to assess damages
In either case, OF agreement or assessment The
valuation is to be paid on confirmation. Tue
irection Of the act of lSIS is-it shall be
CorthtDih paid by the city of Philadelphia.
Interest is not demandaole as of common
right on a claim of payment of money, but by
legislation and the adjudication of courts, Is
given under certain. well understood state of
facts:-By agreement between parties; for de-
tenti0n OF money when it should have been
paid for purchase money of land when posses
sion has passed to the vendee; or when one has
derived a benefit from the money OF another.
There is mere no agreement except as to
amount to be paid; and this is not an aosolu
or binding contract, but is made dependent
upon the approval of tribunal to which the
question of payment of the amount agreed on
Is refer cd. here ia no obligation to pay
until confirmation, and the law fixed that as
the time when the money Is demandable, and
moment II IL desired to do so; there Is, there
fore, neither right to demand or recover by
suit nor An obligation to pay before approval
and confirmation by the Court. TIL such con.
trmation is had the agreement Is contingent,
uncertain, and dependent. 1t becomes nulllty
for all purposes If 1t be not confirmed
AS there was In these cases no agreement to
pay Interest, as the city was not In the actual
follows that Interest can only be claimed for
the detention OF money after IL should have
been paid by the city and this, we hold, Is from
mandatory directions of the law, the power
asd the duty were given and Imposed, at the
same moment-to pay when confirmed, and to
pay forthwith.
We do not consider IL a sufficient answer to
this plain direction OF the law, by those who
oppose the payment OF interest altogether, that
Councils had not made the necessary appro-
prhtion; that the parties knew that no action
had been taken by the city to raise the money
by loan with which to make payment. The
o6ilga1io3n 10 pay remains IN even ven though the
this obligation TO pay IL at given time which
carries with 1t the penalty OF interest, In de-
fault of payment of principal at the moment
when, under the law, ihe owner ofthe land nad
the righ 10 demand 1t. Nor do we consider the
clause in the report of the commissioners, that
the valuations are made subject to the exhIoi
tiop of o good title by the claimant, a valid on
lection TO the view we ave expressed. The
Commissioners were required To report their
agreements as TO amounts to be paid, not
whether the title was good or bad little, for
this question was material (and therefore
proper TO be rightly guarded) only on oondi.
lion that the reports should be confirmed II is
made pan of their agreement, for greater eau.
tion and DOES not alter the right or the ooIlEa.
tion which the law Itself hxes.
The Ci1y VIZ. Dyer, 8 Wright 1853, settles the
question OF the rig ht TO recover interest on an
assess me nJ OF damages for properly taken by
the city tor q street or highway, under the act
ofApril 49, 1855. and also that delay OF payment
is not less au injury; because the owner Of the
land may continue In the occupation of the
property; tnat such occupation is but permis.
sve on the part of the city, and is TO tue
paramount Fight OF the public.
The act of 1855 gives TO the owner OF the land
thus Appropriated the right to have his DANA
ges assessed and TO sue for the same. afGer The
expiration of a year, though the street had not
was allowed on The assessment. Weare unable
to gather with certainty from the report OF Dyer
We, the City, whether interest was allowed from
the date of the fling OF the report of the jury
or from the confirmation of the report We
III.
the date OF confirmation. For the report OF a
jury OF damages Is, like the report OF the Com
missioners, not finalily until approved by
the Court. In truth. IL ts not an assessment
against the city until confirmed, but merely a
report 10 the Court, of the judgment OF the jury
as to the amount wnicn the city viii be re-
But whether the allowance In that case ran
from the first or last date, we do not think
il material in the determination OF the ques.
tlon before us. We rest our conclusion on
The special legislation contalned In the acts of
1877 End 1868 above cited, 10 be gathered from
the WOrdin of the acts as we'll as from their
% neral scope and purpose when considered as
a whole The SlSSn section OF the latter act
clearly coniem plates the continuing possession
| and actual occupancy of the owners, until
| lender or payment, and IL directs that upon
| such payment or tender the Park Com mission
eIE shall OIihWith take possession OF the pre-.
N, ises There is no provision here Tor BecuI iLy
| for damages which wOuid enable the Com mis-.
soners to lake possession a. a6y dme 3eLore e,
report, and not before. For that which the
law directs 10 be done; IL is 10 be presumed will
| be done-tbRt Is, that payment wi i be made on
| confirmation. Pay meuL and taking posse lon
| are clearly intended to be Contemporaueous
| ais. and until the owner is actually dispos,
| sesst d by tender or payment, the law intends
| that he snail continue In the occupancy and
| eT, IoymenL of his property. This possession,
| thsTsfure. unlike hat under the act of 1865 Is
moi pei mi sive merely, hut OF right, there 0ein
| no authority 10 substitute anything for tue
| nSymenI of the money due him. Tnis oonte m
| plated eI Joy ment OF his properly uuLiI COZ.
| frmal ion msy therefore be regarded. as in.
| otherwise, under Dyer and the clty, 10 might be
| argued, was a right 10 interest from the uate o
The aeres ment, Instead OF from The date OF i 1
We therefore hold that isterest ought To oe
| paid from the dale OF confirmation, and MOI
| tention TO take possession under the law, ol
| from the date Of the agreement beLween tue
| Commissioners and the owners OF land taken
i'i In This view my brothers all agree.