279 Pa. 219 | Pa. | 1924
Opinion by
In 1809, James O’Hara was the owner of certain land, now a part of Pittsburgh, and this he plotted into lots, which were designated by numbers on a plan showing their respective locations, and having marked thereon certain open spaces for use as streets and avenues. This paper was never recorded, though a copy was filed in the city’s bureau of surveys and the recorder’s office of Allegheny County about 1830. On it are marked as highways Ross and Try Streets, and certain cross road
From this plot, to which reference is made in all subsequent conveyances, two lots were sold in 1811 to one Wendt, but, in the following year, all privileges acquired thereby were surrendered, a new deed being given to him in which the parties agreed that the first “indenture and record thereof shall be void and of no effect.” In the meantime, O’Hara, desiring to fix the respective rights of himself and the expected purchasers, and the public, in the land plotted, executed, his wife joining, a deed of “dedication of streets,” which was duly recorded, and in which reference is made to the plan already prepared. Therein he expressly set forth which highways were for use of the lot owners, and in his description fixed the terminus of First Avenue at Ross Street, not extending it over the locus in quo to Try. At that time no one was interested in this plan, except Wendt, the purchaser of the two lots, who, as noted, surrendered any claim arising therefrom by his subsequent stipulation.
By the street dedication, O’Hara granted and conveyed to those who should become owners of lots the right to use the highways specifically named. It also provided that the same “should remain open forever for the public benefit, and to be repaired and maintained at public expense, as other streets and highways within the Borough of Pittsburgh.” Years later, work was done by the city on the disputed portion of First Street between Ross and Try, but any privilege therein which may have been secured to the landowners by reason of the city’s acceptance, if such there was, terminated in 1881, with the approval by the quarter sessions court of a proceeding by which the part in question was vacated.
The present bill was filed in 1912, — though the hearing was not had until 1922, — to prevent the continuance of obstructions on the land in question, and enjoin the defendants from in any way closing or interfering with free passage over it. Findings of fact were made by the learned court below, the essential features of which have been briefly set forth above. The injunction prayed for was refused, and this appeal is from the decree entered.
If the plaintiffs have standing to complain here, it must rest on a property right acquired as the purchaser of lots on the O’Hara plan, referred to in the deeds of conveyance. Attention has been called to the fact that
It is therefore necessary to determine the effect of the grants made by O’Hara, all of which refer to the unrecorded plan, as does the “dedication of streets.” There is no evidence that more than one existed, and the suggestion that the plot, showing the extension of First Street, may have been made subsequent to the definition of the highways as filed, lacks support. Notice should be taken of the effort made by O’Hara to prevent misunderstanding by plainly indicating his purpose, and the recall
All of the deeds mention the plan, and convey by lot numbers. This necessitated an inquiry as to the property meant, and compelled the purchaser to investigate the plan, or be bound by what it would have disclosed on examination, though it was not a matter of record: McKee v. Perchment, 69 Pa. 342: Garvey v. Refractories Co., supra. O’Hara did file his grant to the public and lot owners, whereby he located the highways in which rights were to pass, and this writing, concerning land, was properly entered of record under the Act of 1775 (March 18, 1875, 1 Sm. L. 424). The document was within the purview of the statute (Shortz v. Unangst, 3 W. & S. 45; Coleman v. Reynolds, 181 Pa. 317; S. & W. V. R. R. & C. Co. v. Quick, 61 Pa. 328), and, as such, furnished constructive notice of-its contents to the proposed purchasers of the land, as do recorded articles of agreement indicating the rights in property (Rhines v. Baird, 41 Pa. 256), or recitals in the line of title: Hancock v. McAvoy, 151 Pa. 439. An inspection, by the grantee, of the conveyances of O’Hara would have shown the extent of his dedication (Wickham v. Twad
In view of the conclusion reached, a discussion of other matters suggested, and not affecting the result, would be useless. The assignments of error are overruled.
The decree is affirmed at the cost of appellants.