
    Tyrone Township School District’s Appeal.
    Under the right of eminent domain granted to school districts^ by the Act of April 9,1867, authorizing the board of directors of any school district, when unable to procure such eligible site for the erection of school-houses, as they may deem expedient, by agreement with the owners of the land, to enter upon and occupy grounds for the purpose, not exceeding one acre, the school districts are not authorized, either expressly or by necessary implication, to take as a site for a public school-house, a part of a larger tract of land comprising the poor-house farm, which has been dedicated to public use for the care and support of the poor of the county, and no part of which can be taken without great prejudice to said poor.
    May 24, 1888.
    Appeal, No. 76, July T. 1888, from C. P. Perry Co., to review decree granting injunction restraining school board from taking land of poor-house farm for site for a schoolhouse, at Jan. T. 1888, No. 27.
    The facts appear by the opinion of the court below, by Barnett, P. J.:
    “The plaintiff complains that the directors of the defendant, having ‘ selected a portion of the messuage or plantation of land of the poor establishment of the county of Perry aforesaid, have issued proposals for the erection of a school-house thereon, to be opened and let on the 7th instant, and are about to designate, mark off and seize upon the portion aforesaid, in extent about three-fourths of an acre, for the purposes aforesaid.’ It further sets forth in the bill that said plantation [of 172 acres] is scarcely now large enough, and no part can be taken thereof without great prejudice to the said poor; that the directors have in their care many feeble-minded poor to whom the proximity of a public school would prove an annoyance, and prejudice the good order and comfort of the paupers generally; that other sites for a school-house at least equally eligible may be had, and that the seizure now intended is without warrant of law. It prays that defendant may be restrained by injunction from occupying any part of the plaintiff’s premises for the erection of a schoolhouse thereon.
    “The defendant appeared, by counsel, before us when the injunction was applied for. No answer has been filed to the bill; but, as we understand, the matter is to be finally disposed of, as if all the proceedings in the case had been formal and regular, and the decree, waiving all informalities, to be final and subject to an appeal by either party.
    “ Title to the poor-house farm was obtained under the Act of March 24, 1808, entitled ‘An Act to provide for the erection of a house of employment and support of the poor in the county of Cumberland.’ 4 Sm. L. 500. Perry county was erected out of Cumberland by virtue of the Act of March 22, 1820, and included ‘the poor-house establishment’ within its limits. 7 Sm.- L. 275. But it is unimportant whether this land is held under a deed from the former owner, or was taken by proceedings in invitum, in the exercise of the right of eminent domain; in either case it is devoted to a public use.
    
      “ The Act of April 9, 1867, Purd. p. 307, pi. 172, authorizes the board of directors of any school district, when £ unable to procure such eligible sites for the erection of school-houses thereon, as they may deem expedient, by agreement with the owner or owners of the land ... to enter upon and occupy sufficient ground for the purpose, which they shall designate and mark off, not exceeding in any case one acre.’ There is no question that this Act is constitutional. Harvey v. Thomas, 10 Watts, see page 66; Long v. Fuller, 68 Pa. 170. Nor is there any question that improved private property may be taken for the purpose. Brocket v. The Ohio Pennsylvania Railroad Co., 14 Pa. 241; Ferree v. Sixth Ward School District of Allegheny, 76 Pa. 376. The only really important question is, whether, under the said Act of April 9, 1867, a part of the land, previously devoted to a different public use, may be taken as a site for a public school-house. That the legislature has the power to authorize the taking of land already applied to one public use, and devote it to another, is unquestionable. And this power may be granted either by express words or by necessary implication. It is not claimed, in this case, that defendant is expressly authorized to take the plaintiff’s land, and the only question that is left is whether it is so authorized by a reasonable construction of said Act of Assembly.
    “‘If an implication is to be relied upon, it must appear from the face of the enactment, or from the application of it to the particular subject matter of it, so that, by reasonable intendment, some especial object sought to be attained by the exercise of the power granted, could not be reached in any other place or manner.’ Matter of the City of Buffalo, 68 N. Y. 167; see Mills on Eminent Domain, § 46. The poor-house farm is but a very small portion of Tyrone township. There are surely many other eligible sites in the township for the erection of a school-house; and the object sought to be attained by occupying plaintiff’s land could doubtless be reached in some other place with equal advantage. It is true, the language of the Act appears to be very broad. It authorizes the directors, when unable to procure such eligible sites for school-houses as they may deem expedient, to enter upon and occupy ground for the purpose. But the inability specially mentioned, which creates the necessity to enter and occupy, is when they are unable to procure an eligible site by agreement with the owner or owners of the land. The applicability of this language is readily perceived, where it is sought to procure the land from a private owner, who has the capacity but is unwilling to agree ; but it is not apparent, in the case of land already appropriated to a public use, without an owner competent to make any agreement on the subject. It is said in Mills on Eminent Domain, § 46 : ‘To take property already appropriated to another public use, the Act of the Legislature must show the intent so to do by clear and express terms, or by necessary implication, leaving no doubt or uncertainty respecting the intent.’ And for this the author cites numerous authorities. ‘The legislature,’he says, ‘is not prosumed to have abandoned the former use, and turned over the property to the later use, without clear and unmistakable expression of that intention. Lands held for the purposes of public parks, reservoirs, or institutions for the blind, cannot be taken for railroad purposes, even though the railroad company was authorized to take for its route all lands necessary belonging to the state.’ The same rule, with equal reason, will apply to land appropriated to institutions for the poor, and prevent their occupation for later public use, without clear legislative expression of such intention. As illustrative of the general legal principle here applied, we think it sufficient to refer to the following authorities: Stormfeltz v. The Manor Turnpike Company, 13 Pa. 555; Packer v. The Sunbury and Erie Railroad Company, 19 Pa. 211; Com. v. The Erie and Northeast Railroad Company, 27 Pa. 339; Plymouth Railroad Co. v. Colwell, 39 Pa., on page 340; Lance’s Appeal, 55 Pa. 16; Phillips v. Dunkirk, Warren & Pittsburg Railroad Co., 78 Pa. 177; the last three to the effect that grants in the exercise of eminent domain are to be strictly construed. We are of opinion that the quasi corporation School District has no legal right to enter upon the lands of the quasi corporation Poor District, and occupy any part of them for public school purposes.”
    
      The assignment of error specified the action of the court in granting the injunction.
    
      B. F. Junkin,, with whom was J. E. Junkin, for appellant.
    The county owns as a county, just as a land owner owns; the appropriation is unimportant. There is no more vested right in the county to keep all than in the individual. The county does not hold under a charter.
    Conceding this land as held by the county for a specific purpose, still it is held subject to the necessities of the public. West River Bridge v. Dix, 6 How. 507; Crosby v. Hanover, 36 N. H. 404.
    This § of an acre may be convenient, but it is not necessary to the enjoyment of the remaining 172 acres, nor does it in any way restrict or interfere with the use in its general sense. Peoria R. R. v. R. R., 66 Ill. 174; Iron R. R. v. Ironton, 19 Ohio St. 299.
    Land already devoted to a public use may be taken for another public use, and, when so taken, the former use is deemed of less importance. Talbot v. Hudson, 16 Gray, 417: Miller v. Craig, 11 N. J. Eq. 175.
    This question is met by the Southwest Penna. Pipe Lines v. Directors of the Poor, 1 Pa. Co. C. R. 460, where Hart, P. J., held that a corporation having the right of eminent domain may enter upon lands held for the employment, maintenance and support of the poor. We print his opinion in full, and make it a part of our argument.
    
      W. H. Sponsler, with whom was J. L. Markle, for appellee.
    The authority of school districts to purchase or take and hold lands for school purposes may be discovered by an examination of § 14 of the Act of June 13,1836, P. L. 531, the last option Act, in connection with what grew out of it, § 18 of the-Act of May 8, 1854, P. L. 620, with the 22d and 23d sections of the latter Act and the Act in question, § 1 of the Act of April 9, 186Y. The Act of 1836 is referred to simply to show that the power under it is as strong and complete as under the compulsory Act.
    Under the Act of 1854 there was one way of acquiring sites, and this was by the voluntary act of the owner or owners of lands. The property was either to be purchased or rented. This restricted the property that could be used to such only as the owners were both' willing and able to rent or sell. On the same day the general Act of 1854 was passed, a special Act was passed, P. L. 6Y1.
    The Act of 186Y is but an extension of the powers contained in the special Act of 1854, to the other school districts of the state, Long v. Fuller, 68 Pa. 1Y0; and its interpretation is controlled by the construction to be put on the ■ special Act. Though the special Act may be interpreted to extend to property, the controllers, managers or owners of which are under some legal disability to bargain and sell, yet, by a well-established principle of law, it can not extend to property already dedicated to public use within Chester and Delaware counties, since the Act does not show the intent to allow it to be done “ by clear and express terms, or by necessary implication, leaving no doubt or uncertainty respecting the intent.” Mills, Em. Dom. § 46; State v. Noyes, 47 Me. 189; R. R. Co. v. Commissioners, 118 Mass. 561; Proprietors v. Lowell, 7 Gray, 223; Bridgeport v. New York R. R. Co., 36 Conn. 255 ; In re Ninth Ave., 45 N. Y. 729; In re Manhattan Co., 22 Wend. 653; In re Comrs. of Cent. Park, 63 Barb. 282; Hickock v. Hine, 23 Ohio St. 523; Hatch v. R. R., 18 Id. 92; In re Buffalo, 68 N. Y. 167; R. R. Co. v. Faribault, 23 Minn. 167; In re Wellington’s Petition, 16 Pick. 87; Com. v. Stevens, 10 Pick. 247; R. R. Co. v. R. R. Co., 118 Mass. 391; Canal v. R. R., 11 Leigh, 42; State v. R. R., 36 N. J. L. 181; R. R. v. R. R., 31 N. J. L. 205; Turnpike v. R. R., 35 Md. 224; R. R. v. Mann, 43 Ga. 200; R. R. v. R. R., 3 Ind. 464; Mayor v. R. R. Co., 53 Ga. 120; In re Boston R. R., 53 N. Y. 574; State v. R. R.; 35 N. J. L. 328; R. R. v. Blind Inst., 43 Ill. 303; Water Co. Case, 23 Pick. 360; Bridge Case, 10 Pick. 270.
    The Act of 186Y, being a general Act granting the right of •eminent domain, it cannot take special property already dedicated to public use, and could only obtain an easement in invitum where the taking would not materially prejudice the purpose of the first dedication, or, in the ease of talcing land, would not devote it to a different purpose than that for which it was used by the first dedication. Eochester Water Commissioners, 66 N. Y. 413. Or, at least, unless the second use was more important. Miller v. Craig, 11 N. J. Eq. 175; Talbot v. Hudson, 16 Gray, 417, and kindred cases.
    Quasi corporations existing for a public purpose, each supported by public means independent of the other, and each subserving its own purpose, cannot, without express legislative authority, take the property or disturb tbe functions of the other. Directors v. Directors, 42 Pa. 21, and Cumru v. Directors, 1 Woodward’s Dec. 175.
    Oct. 1, 1888.
   Sterrett, J.,

The lot selected by appellant as a. site for one of its school-houses is a part of a larger tract of land heretofore dedicated to public use, “ for the care and support of the poor of the county;” and, in the fifth paragraph of its bill, appellee says said tract of land, in its entirety, “ is now scarcely large enough and capable of affording employment to a large number of poor persons under its care and charge, and no part thereof can be taken without great prejudice to said poor.” This averment of fact does not appear to be traversed or denied, and must, therefore, be accepted as true. If so, it is a complete answer to the claim of appellant. It was certainly never intended by the Act in question that the land already appropriated and actually required for such an important public use as the care and support of the poor of the county, should be taken, in whole or in part, for school purposes.

For this and other reasons, clearly presented in the opinion of the court, the decree complained of was entirely proper.

Decree affirmed and appeal dismissed at the costs of appellant.

T. E. P.  