169 Pa. 282 | Pa. | 1895
Opinion by
The plaintiff brings an action of trespass against defendants for closing an alley adjoining her property in the city of Allentown. Liberty street was the northern boundary of the city; the streets and alleys, among them Hall Alley, running north and south, had outlet on Liberty street; on June 16, 1870, the councils, by ordinance, extended the city limits northwardly beyond Liberty street, and enacted, that all the North and South streets, at right angles to Liberty, between Fourth and Twelfth, should extend to the new city limit on the north, without change of course from their then location; that Fourth, Fifth, Sixth, Eighth, Ninth, Tenth and Eleventh streets should be sixty feet wide, Seventh, eighty feet, New street, fifty feet and all the others running in the same direction should be twenty feet, which last width would include Hall alley or
The learned judge of the court below was of opinion that as the grantor, in his deed to Weikel a’nd Seip, had described the land as bounding on an alley, that was a representation by him that an alley then existed, and even if the city afterwards abandoned it, as the land, at the conveyance to Weikel and
The question is, what was the intention of Reuter, in his deed to Weikel and Seip, in bounding their lot by a line extending two hundred feet along Hall alley ? He reserved to himself only what he did not convey to them; he could not convey to defendants’ predecessors in title what he had not reserved. It will be noticed Reuter was the owner of the whole tract; on the 4th of May, 1871, he conveyed the lot opposite plaintiff’s lot to Anna Nagle ; on the 13th of November following he conveyed to Weikel and Seip, who, as subsequent purchasers, were bound to take notice of the conveyance to Mrs. Nagle ; whether that carried her lot to the middle of Hall alley, as against the Reuters, we cannot decide on the facts; the description does not mention the alley, and the drafts are not before us ; if it did not go to the middle of the alley then the half of the alley, at that point, would probably pass to the purchasers, Martin and Diefenderfer, under deed of 14th of April, 1888, the deed under which defendants claim. What may be the extent of their right to this half next Mrs. Nagle we cannot determine in this action; nor can we determine how far subsequent purchasers are bound by implied covenants, if any, in Reuter’s deed to Weikel and Seip, when both they and Weikel and Seip had before them the record of Mrs. Nagle’s deed when they purchased. But the deed to Weikel and Seip expressly describes Hall alley; the fact, then, is established and undisputed, that Reuter, in the deed to the predecessors in title of this plaintiff, adopted the alley as a boundary for her lot; then appears the further fact, that the fences along each side of the alley left between them and the twenty feet, which remained open, not only for use of the grantees, but for the public who chose to use it. The case, on its facts, comes directly within the ruling in Paul v. Carver, 26 Pa. 223. In that case one Lownes, in 1805, being the owner of a large tract of land called Barnfield, in Philadelphia county, by his will directed that a street fifty feet wide should be laid
Here, the facts, that from the ordinance there was an extension of Hall alley, and that lots abutted on tire alley; the' opposite lot of Mrs. Nagle, at least, fitting up to the alley, although it is not called for in her deed; then, the Weikel and Seip lot, on the other side, being express^ bounded by the alley, show the intention of Reuter, in this Weikel and Seip deed, not to reserve the alley as against Weikel and Seip. Although the city had not, so far as appears from the evidence, improved or • worked upon this alley after the ordinance of June 16, 1870, and although, by ordinance, in 1887, it was abandoned, yet the first ordinance declared that Hall alley should extend continuously northward, as already established southward ; after this ordinance, the deeds were made for the lots on each side, and for seventeen years it so remained open for the public who desired to use it. As 3s said in Paul v. Carver, supra, does any one suppose, from this deed, it was the intention of the grantor to reserve this narrow strip of ground, accessible only from each end ? In Cox v. Freedley, 33 Pa. 124, the question again eame before us; the court below thought, as the descrip
In the first two cases cited, the streets were only plotted on paper; in Burial Ground v. Robinson, the words were “ on south by Washington street, as the same may hereafter be opened,” — the street never was opened; and a similar description was adopted in Bellinger v. Union Society ; in each case, the street had no existence at the date of the deed, and necessarily, the intention to convey without reservation of that which might never be used for street purposes was not manifest. Here the alley had been adopted by the law of the city more than a year before the deed, and the deed expressly recognizes it as an existing alley. The question is not, whether the city by proper municipal action had constituted the alley, in all respects, a city highway, but whether it was treated as one in fact by the grantor in his deed to Weikel and Seip, for that is a clue to his intention to reserve or grant without reservation the land to the middle of the alley. In Brooktyn street, supra, the question before us was not in issue ; in that case, the dispute was as to whether the grantor of lots on each side of a street laid out, but not opened, was entitled to damages when the street was actually opened; it being argued, that the description of the lots operated as a dedication of the street to public use; this court held, the appropriation of the street was by the municipality, and the description of the street in the deeds was not a dedication by the owner of the land.
Whatever apparent conflict there may be in the cases, there is really none when the dissimilarity in facts indicating the intention of the grantor is noticed; the principle adhered to in all the cases is, that the intention is controlling and that, in bounding land by a street, it will be presumed the grant is to the middle of the street, unless the contrary be manifest from other words of the grant, or the subject of it indicates plainly a different intent. Of Paul v. Carver, supra, it was said, subsequently, in Cox v. Freedley, supra: — “ It was maturely considered and unanimously pronounced. It was shown to be agreeable to the general principles of the common law, as laid down by chancellor Kent, and other text writers, and as they had been applied in numerous cases in England and our own country. It was shown also to be sanctioned by the general sense and understanding of the people, — and that any doubt or denial of it would introduce intolerable inconvenience, confusion and litigation.”
So, while we are of the opinion defendants were trespassers in erecting their building on the half of the alley next plaintiff’s lot, and therefore there was no error in the judgment for nominal damages, yet on the facts now presented we decline to hold there was an implied covenant on part of Reuter that the alley should forever be kept open for the use of all his separate grantees, notwithstanding its abandonment by the city, We only decide, that from the description in the conveyance, and the subject of it, there was no reservation as against this plaintiff which would stop her line short of the middle of the alley. This judgment vindicates her right to the half of the abandoned alley next her lot, and goes no further.
The judgment is affirmed and appeal dismissed.