142 Pa. 350 | Pennsylvania Court of Common Pleas, Philadelphia County | 1891
Opinion,
The lines of Chestnut street in Philadelphia had been settled for many years prior to 1870, and the occupancy by the
When the act of 1870 became a law, Greble owned a lot on the south side of Chestnut street, between Seventeenth and Eighteenth streets, with a front of forty-four feet. It was then occupied as a marble-yard, at which the manufacture and sale of monuments, liead-stones, and other marble-work were carried on. The foot pavement extended up to the old line of the street, upon which there was an iron fence. On the other side of the fence, the lot was occupied as a marble-yard, and work ready for sale or removal was displayed along and near to the fence. This actual enclosure and occupancy existing when the act of 1870 was passed continued down to 1886, when a block was erected on the new street line covering the entire front. The city took possession of the strip of land thus surrendered, and in 1888 the owner presented the petition in this case, asking for an assessment of his damages. Proceedings were had, and a judgment recovered against the city for the value of the land, from which this appeal was taken, alleging that the plaintiffs’ demand is barred by the statute of limitations. The appellant contends that the act of 1870, ex proprio vigore, appropriated the plaintiffs’ land to the use of the public, and that the statute began to run against them at once, so that at the end of six years from the approval of the act of 1870 their action was barred.
It is urged that a contrary doctrine is held by Smedley v. Erwin, 51 Pa. 445, but we do not so understand that case. The act that came under consideration in Smedley v. Erwin ordained and fixed the limits of a street in Philadelphia, and directed the commissioner of highways to proceed and open it for public use within thirty days. The act was not permissive, but directory. It left nothing to the judgment or decision of the city councils or the courts, but laid a legislative injunction upon the commissioner to open a street for public use upon a location absolutely fixed in the act itself. This was an appropriation of the land covered by the street by the legislature, and the only thing left for the city or the courts to do was to ascertain its value, and make compensation to the owners. The act of 1870 lays no command on the.city or its officers. It fixes the south line of the street so as to settle any possible question about the legality of widening it, but it leaves everything else to the city. Whether the city shall avail itself of the new line, and, if so, when, to what extent, and in what manner, are questions over which the city has absolute control within the general limits fixed by law. These
The judgment is affirmed.