14 Pa. Super. 117 | Pa. Super. Ct. | 1900
Opinion by
Prior to the dedication to which we are about to refer, there was an alley twenty feet wide extending south from Washington street a distance of 189.4 feet. The owners of the land lying to the south of the terminus of the alley plotted the same into lots, streets and alleys and sold the lots according to the recorded plan. One of the streets thus laid out, dedicated and opened to public use was, practically, an extension of the alley, but instead of corresponding in width to the alley it was forty feet wide. This, we infer from the statements in the paper-books, was an opened traveled way forty feet wide at the time of the institution of these proceedings and had been for several years. It does not appear that it has ever been accepted by the city. The situation is represented with'sufficient accuracy for present purposes by the accompanying draft.
By ordinance approved March 24, 1898, the city councils “located and established” Atlantic avenue as beginning at Washington street and extending thence by courses and distances to the other terminus of the dedicated street, “ and of the width of forty feet throughout,” and by an ordinance approved May 81, 1899, they directed that the street as theretofore ordained and established, “ be opened throughout, and the damages caused thereby be assessed upon the property benefited in the manner provided by law.” The land actually taken by the proceeding was a strip 189.4 feet long and twenty feet wide. For this the viewers awarded to the owner $1,200 as damages, and assessed against him $100 as benefits. The remaining $1,100 they assessed as benefits against the owners of lots abutting on the street, including not only those abutting on the alley
The sale of lots according to a plan which shows them to be on a street implies a grant’ or covenant to the purchaser that the street shall be forever open to the use of the public, and operates as a dedication of the street to public use. The right passing to the purchaser is not the mere right that he may use it, but that all persons may use it. ■ Such dedication of the street by recording a plan and selling lots accoiding to the plan operates as a relinquishment of all claims for damages for the use of the land within the lines of the street for street purposes, and no claim therefor can be sustained unless the street is within the provisions of the Act of May 9, 1889, P. L. 178. It is not pretended that this street is within the provisions of that act. “ Such dedication was said in Heckerman v. Hummell, 19 Pa. 64, to be a contract with the public. The distinction between the sale of lots according to a plan made by the owner upon which the streets are laid out and the mere reference in aid of description to streets projected by the municipality is manifest. In the former case the inference of dedication apses, in the latter it does not: ” Fell, J., in Quicksall v. Philadelphia, 177 Pa. 301. See also Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92, and cases there cited. It follows that the ex-ceptants were not in a position to claim damages by reason of the taking of the land upon which their lots fronted, although it must be conceded that their title went to the middle of the street. Nor, in view of the provisions of the act of 1891 requiring the viewers to report the damages and benefits separately, is it possible to assume that anything was allowed them as damages by way of off-set to the benefits. For aught we know, if they had been allowed compensation as if this were the opening of a new street and not the mere formal acceptance of a street already opened and dedicated by the landowners, their damages would have been equal to any special or peculiar benefits they received. As a result of an 'approval of the report of viewers they would have been compelled to pay in relief of the city, over three fourths of the cost of a particular part of the improvement, although, so far as appears, they had, by dedication of their land, contributed their full share of the cost of
The order is affirmed.