As far as it is sought to enjoin the City of Scranton from proceeding under or in pursuance of the Ordinance on the ground that it is an invalid enactment, it is sufficient to say that the City has undoubted authority to vacate its public highways, and the courts do not inquire into its motive in exercising such right, whether, in this case, it was to benefit Simpson Real Estate Corporation or otherwise. As stated in Titusville Amusement Company v. Titusville Iron Works Company, 286 Pa. 561, 567, 134 A. 481, 483: "The courts do not inquire into a municipality's purpose in doing that which it has a legal right to do." In regard to the question whether plaintiff has any easement over Oakford Court which would entitle her to succeed in her present action, there are two well established principles of law.
Furthermore, RKO's property rights against Mellon Bank are not affected by such authorized governmental actions. Cohen v. Simpson Real Estate Corp., 385 Pa. 352, 355, 123 A.2d 715, 717 (1956); Titusville Amusement Co. v. Titusville Iron Works Co., 286 Pa. 561, 134 A. 481 (1926). See 53 P.S. § 1672.
Hence, where the purposes for which the land was dedicated no longer exist or the public is no longer benefitted by such use, the municipality then has the power, and indeed sometimes the duty, to vacate the road. See G. C. Murphy Co. et al. v. Redevelopment Authority, 458 Pa. 219, 326 A.2d 358 (1974); Titusville Amusement Co. v. Titusville Iron Works, 286 Pa. 561, 134 A. 481 (1926). See also City of McKeesport v. McKeesport Reynoldton Passenger Ry., 2 Pa. Super. 242 (1896).
It is well settled that the grantee of a lot, which is sold according to a plan of lots on which streets or alleys not previously opened or projected as a public street are plotted out by the grantor, acquires an easement over those streets and alleys as a private right of property arising out of the grant, of which he cannot be deprived without compensation: Chambersburg Shoe Mfg. Co. v. Cumberland Valley Railroad Co., 240 Pa. 519, 87 A. 968. See also O'Donnell v. Pittsburgh, 234 Pa. 401, 83 A. 314; O'Donnell v. Porter Company, 238 Pa. 495, 86 A. 281. Where there has been a prior opening or projection by a municipality or a dedication by a private owner and acceptance by a municipality of streets and alleys appearing on a plan of lots, a subsequent purchaser of a lot which is part of the plan of lots obtains no private right to or easement over those streets. The right of the public is paramount (See Titusville Amusement Co. et al., v. Titusville Iron Works Co. et al., 286 Pa. 561, 570, 571, 134 A. 481, and Gailey et al. v. Wilkinsburg Real Estate Trust Co., 283 Pa. 381, 386, 129 A. 445) and the right of the grantee of the lot is limited to an easement by necessity. Appellants contend that the appellee failed to establish the necessary elements of its case and that the ordinance and the viewers' proceeding pursuant thereto did not extinguish private rights in the alley.
1 Nichols, Eminent Domain (2d ed.), p. 75, sec. 22. See also 18 Am. Jur., Eminent Domain, p. 636, sec. 7; 29 C.J.S., Eminent Domain, p. 782, sec. 4; 4 McQuillin, Mun. Corp. (2d ed.), p. 456, sec. 1578; 6A Fletcher, Cyc. Corp. (perm. ed.), p. 580, sec. 2917; United States v. Highland Falls (2d Cir. 1946), 154 F.2d 224; Riden v. Philadelphia, B. W. R. Co. (1943), 182 Md. 336, 35 A.2d 99; Trustees of Phillips Exeter Academy v. Exeter (1940), 90 N.H. 472, 27 A.2d 569; Southern Indiana Gas Electric Co. v. Boonville (1939), 215 Ind. 552, 20 N.E.2d 648; Titusville Amusement Co. v. Titusville Iron Works (1926), 286 Pa. 561, 134 A. 481. Defendants cite Nichols as authority for their contention that to entitle the city to exercise its power it must first either return the donated land or restore it to its original condition or pay for the easement granted before condemnation may be instituted. What Nichols says in that regard might be construed as giving the owner some right to claim for breach of its agreement, a point we are not called upon to decide in this case.
Moreover, the question of an abuse of discretion has no place in the consideration of a case like the present. The director had not merely the right to separate 130 men from the police force, it was also his absolute duty. "Unless the means employed are unlawful, the motive for the acts are immaterial. No malice of any sort or character can be imputed to one who exercises an absolute right, whatever his motives . . . . . . . If one has a legal right to do a particular thing the law will not inquire into his motive for doing it: Beirne v. Continental Equitable Title Trust Co., 307 Pa. 570"; Kirmse v. Adler, 311 Pa. 78, 86; Vetter's Est., 308 Pa. 447; Titusville Amusement Co. v. Titusville Iron Works, 286 Pa. 561. So also we said in Brower v. Kantner, 190 Pa. 182, quoting with approval from Field v. Com., 32 Pa. 478, "Where an appointment is during pleasure, or the power of removal is entirely discretionary, there the will of the appointing or removing power is without control, and no reason can be asked for, nor is it necessary that any cause should be assigned." On this principle we decided in Scott v. Pgh., 266 Pa. 52, that the law will not enjoin the opening of a cul-de-sac short street, at the instance of a property owner whose land was being taken in so doing, because, as he alleged, the opening ordinance was passed for the sole purpose of benefiting another property owner, who was a friend of the councilmen, and whose property would, by the opening, abut on the dead-end of the new street, thereby giving its occupants an outlet thereover.
Therefore under the allegation of fraud all reasons, acts, or conduct underlying or making up the decree or judgment are open to investigation when the effect of such decree or judgment is to prejudice the rights of third parties not parties to it. If the wife had a real cause or valid ground for divorce, the fact that she exercised that right and procured a decree solely to fulfill the condition of the testator's will, and was happy because of the opportunity to do so, would not affect her right to take the property under the terms of the will. If one has the legal right to do a particular thing, the law will not inquire into his motive for doing it: Beirne v. Continental-Equitable Title Trust Co., 307 Pa. 570, citing Jenkins v. Fowler, 24 Pa. 308; Vitagraph Co. v. Swaab, 248 Pa. 478; Roush v. Herbick, 269 Pa. 145; McDermott v. Reiter, 279 Pa. 545; Titusville Amusement Co. v. Titusville Iron Works, 286 Pa. 561. But that is not our case; what happened here was that the parties deliberately set out to defeat the will of appellant's father; they agreed on a program which included going into another state, getting a divorce, presenting a petition to terminate the trust, securing the fund, and then remarrying after this was accomplished. Thus the will would be set aside, the rights of the remaindermen defeated, and the court below made a mere conduit for fraud.
When he dies, and then only, do the rights of his wife attach to his personal estate." Those decisions are all based on the general rule that if one has the legal right to do a particular thing, the law will not inquire into his motive for doing it: Jenkins v. Fowler, 24 Pa. 308; Vitagraph Co. of America v. Swaab, 248 Pa. 478, 493; Roush v. Herbick, 269 Pa. 145; McDermott v. Reiter, 279 Pa. 545; Titusville Amusement Co. v. Titusville Iron Works Co., 286 Pa. 561. In the cases first above cited, and the others in their train, the question of the husband's or wife's intent to commit an actual fraud on the other spouse was not considered, perhaps was not attempted to be shown.
"In the exercise of the police power of the State, for a purpose highly necessary in the promotion of the public health, it has become necessary to change the location of the pipes of the gas company so as to accommodate them to the new public work. In complying with this requirement at its own expense none of the property of the gas company has been taken, and the injury sustained is damnum absque injuria:" New Orleans Gas Light Co.v. Drainage Commission, 197 U.S. 453, 462, 25 S. Ct. 471, 474, quoted and relied upon in Titusville Amusement Co. v.Titusville Iron Works Co., 286 Pa. 561, 573, 134 A. 481. See also Am. Telegraph Telephone Co. v. Millcreek Twp., 195 Pa. 643, 46 A. 140; Scranton Gas Water Co. v. Scranton, 214 Pa. 586, 64 A. 84; Duquesne Light Co. v. Pittsburgh, 251 Pa. 557, 97 A. 85; Easton v. Miller, 265 Pa. 25, 108 A. 262.
We will not inquire into the City's motives for the vacation but we will review its action to determine if it has abused its discretion. Titusville Amusement Company v. Titusville Iron Works, 286 Pa. 561, 134 A. 481 (1926). In Illinois ex rel. Greer v. City of Chicago, 154 Ill. App. 578 (1910), the First District Appellate Court of Illinois held that an ordinance vacating portions of a street which contained as a proviso the right to maintain sewer and water pipes was operative as to the vacation but invalid as to the reservation.