148 A. 56 | Pa. | 1929
Argued October 3, 1929. Defendant appeals from a final decree of the court below, requiring it to remove certain obstructions from the beds of Eighth Street and of Ogle Way, formerly Plum Alley, in the City of Pittsburgh, and enjoining it from thereafter obstructing either of them. The decree must be reversed.
In 1794, the properties now owned by plaintiff and defendant, were sold and conveyed by the then owners of both of them, to the common predecessor in title of these litigants, according to a plan which shows both of said streets, each over twenty feet wide, as thoroughfares intended for the use of the owners of lots in said plan.
By section 9 of the Act of June 16, 1836, P. L. 749, 753, it is provided that "All streets, lanes and alleys within the City of Pittsburgh, if not less than twenty feet in width, which have been laid out, appropriated and opened by private persons, for public use, or for the use of the owners of lots fronting thereon, or which shall be, being of not less than twenty feet in width, hereafter laid out, appropriated, and opened, as aforesaid, shall for every purpose, be deemed, taken, and bepublic highways, as fully as the other public streets within the said city."
It will be noticed that this statute applies to highways "which have been laid out, appropriated and opened," as well as to those which shall "hereafter [be] laid out, appropriated and opened." In Duff v. Heppenstall Forge and Knife Co.,
By an ordinance of the city, approved September 8, 1852, both Eighth Street and Plum Alley were vacated and the beds thereof were surrendered to the Pennsylvania Railroad Company, defendant's immediate predecessor in title. The vacating ordinance enjoined certain conditions upon the company, but these conditions were not imposed for the special benefit of plaintiff or any of its predecessors in title, and hence it has no standing to complain of a failure to comply therewith. The court below found, without objection from plaintiff, that "Eighth Street has been continuously closed since the passage of that ordinance (September 8, 1852), and the one hundred feet of Plum Alley, complained of in this bill, has never been opened or used since the passage of the ordinance of the City of Pittsburgh on March 29, 1886. __________ Under the admitted facts of this case, the Pennsylvania Railroad Company, which is the real defendant in the case, has had possession of the land formerly within the boundary lines of the streets in dispute, for over forty years, covered by their railroad tracks and warehouses." It also found that neither the public generally nor any lot owner in the plan had made any use of either street during that period of time, and might have added that, so far as the record disclosed, no claim of a right to such use was made by plaintiff, or its predecessors *588 in title, until about the time the present bill was filed on April 8, 1927. Under such circumstances the easement, which was at one time appurtenant to plaintiff's property, has been wholly lost by lapse of time.
In Mitchell v. Bovard,
That opinion must approve itself to every thoughtful and unbiased mind. It has never been doubted by us, and is conclusive of the controversy in the instant case. It is not possible to conceive of acts more clearly "inconsistent with the right" of plaintiff and its predecessors in title, to still have an easement over these properties, than "the admitted fact [that] the Pennsylvania Railroad Company, which is the real defendant in the case, has had possession of the land, formerly within the boundary lines of the streets in dispute, for over forty years, covered by their railroad tracks and warehouses." In the case cited, thirty years adverse use was deemed sufficient to destroy the easement; here there has been forty years as to one street and nearly seventy-five years as to the other. Indeed, twenty-one years would have been ample under the Act of March 26, 1785, 2 Sm. Laws 299, the exceptions therein in favor of those "within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, or from and without the United States of America" not applying here, and by section 15 of the Act of April 14, 1851, P. L. 612, 615, the existing forty years would have been ample even if the exceptions had existed. Moreover, as pointed out in Gailey v. Wilkinsburg Real Estate Trust Co.,
Evidently feeling the stress of the argument on this point, plaintiff contends that the use by defendant's predecessor in title was permissive only and asks us to so find, and hence to exclude the defense we are considering, though pointing to neither fact nor circumstance to justify the conclusion. This, of course, we cannot do. Aside from the presumption which we have already considered, it may be said that a use will be held to be permissive in case there was an express or implied permission to use, but not otherwise. "The term 'permissive use' which is used interchangeably with the word 'license' meaning the use of a way with the consent of the landowner, which is terminable at the will of the landowner, or on completion of the specific act or acts contemplated in the permission": Novinger v. Shoop (Mo.),
If plaintiff ever had any right to object to the use of the streets by defendant and its predecessor in title, that right, especially so far as concerns the relief herein sought in a court of equity, must be held to have been long since lost by lapse of time. We said as early as Foulk v. Brown, 2 Watts 209, 215 (1834) quoted with approval in Biddle v. Girard Nat. Bank,
The decree of the court below is reversed and plaintiff's bill in equity is dismissed at its costs.