Butler Street, Appeal, No. 115

Appeal, No. 115 | Pa. Super. Ct. | Jan 21, 1902

Opinion by

William: W. Porter, J.,

The sole question in this case is, whether the injury to an owner of nonabutting property, in the case of a vacation by striking a street off the city plan by the board of surveyors in obedience to an ordinance of councils, arises when the street is 'stricken off, or when it is physically closed. The Supreme Court has recently held, in Wetherill v. Penna. R. R. Co., 195 Pa. 156" court="Pa." date_filed="1900-03-19" href="https://app.midpage.ai/document/wetherill-v-pennsylvania-railroad-6245753?utm_source=webapp" opinion_id="6245753">195 Pa. 156, that where a street is stricken from the city plan by the department of public works, in obedience to an ordinance of councils, and a new plan is confirmed, omitting the street, the legal vacation is complete and does not require any confirmation or other action by proceedings in the courts, Mr. Justice Mitchell saying: “ When, therefore, in obedience to the authority and direction of councils, a street is stricken off the city plan by the department, it has no longer any warrant for existence as a public street. There is no appeal or review by any judicial tribunal and nothing further required for a complete legal vacation.” See also Carpenter v. Penna. R. R. Co., 195 Pa. 160" court="Pa." date_filed="1900-03-19" href="https://app.midpage.ai/document/carpenter-v-pennsylvania-railroad-6245754?utm_source=webapp" opinion_id="6245754">195 Pa. 160. In the case at bar, Butler street was omitted from the new plan in obedience to an ordinance of councils. This action was, under the cases cited, a complete vacation. The land formerly subjected to the servitude of public use was restored to the abutting owners. Responsibility on the part of the city for the street as a public highway, ceased. The right of the public to use the street as a public highway was gone. It was depreciation of value due to the extinction of this right which injured the owners of property adjacent to the vacation, if any injury did in fact result. The erection subsequently of a physical obstruction to the use of the street could not injure the owners of adjacent property, for the right to use no longer existed. We must, therefore, conclude that the injury, for which damages are now sought, was complete (if injury accrued) when the plan was confirmed, omitting the street.

It is unnecessary to answer in detail the arguments skilfully and earnestly presented by counsel for the appellant, since they do not satisfactorily point out any way of escape from the effect and application of 'the language of the Supreme Court in the cases cited. Wherefore, the order of the court below dismissing the petition is affirmed.