28 Pa. Super. 354 | Pa. Super. Ct. | 1905
Opinion bt
The numerous specifications of error in this case all go to the conclusions of law; no one of the findings of fact by the learned judge of the court below is directly challenged. There was no conflict of evidence as to the facts, and it is difficult to see how there could have been, for every fact material to the rights of the parties under the issue presented to the court below was distinctly averred by the plaintiff in his bill, and by the defendants in their answer expressly admitted to be true.
■ T. Henry Asbury being the sole owner of a large tract of land, in the year 1889, caused a plan of said property to be made, on which were laid out lots and streets. Among the streets was Lakeside avenue of the width of fifty feet, beginning at a point on the westerly side of Cheltenham avenue and extending westerly to Twelfth street. Some time between
The facts above recited are conclusively established by the pleadings, and it is in vain to speculate about there being any uncertainty as to the exact location of Lakeside avenue, or to inquire, whether there was an apparent variance between the lines of the original Asbury plan and the street fifty feet wide as actually located upon the ground. The bill avers and the answer admits that, at the time plaintiff purchased, Lakeside avenue had been opened upon the ground as “plotted and laid out on said plan and in accordance with the lines, courses and distances shown thereon; ” and that the lines adopted by the municipal authorities, in plan No. 249, were substantially the same as those shown by the Asbury plan. There • is no question as to the exact location of Lakeside avenue upon the ground and its existence as a visible physical monument at the time plaintiff purchased, and in determining the rights which arose under the contract, as between the parties and under these pleadings, that location must govern.
The learned judge of the court below was called upon to deal with the rights arising out of undisputed facts, and if the plaintiff had a clear legal right to have Lakeside avenue remain open as a way appurtenant to his land, his right to the decree entered in this case followed as a necessary consequence. When an owner of land subdivides it into lots and lays out streets, alleys or courts for the accommodation of the lots, the purchasers of lots acquire a right of property, appurtenant to the lots, in the use of the streets, alleys or courts, without regard to whether any right is by the plotting and conveyance vested in the public: Kirkham v. Sharp, 1 Wharton, 328; Cope v. Grant, 7 Pa. 488; and when a street is located by the
When Asbury caused a plan to be made of his property in the city of Philadelphia, actually opened Lakeside avenue upon the ground according to the plan, and conveyed to the plaintiff a lot by a deed referring to the plan, and calling for a frontage upon Lakeside avenue, this constituted a dedication of the street to public use, but such dedication would not make the street a public highway until it was by the public accepted as such. The 'right which the plaintiff acquired to use the street was not, however, dependent upon the acceptance or rejection by the public of the dedication. He took from his grantor, by implied convenant, the right to have the ground over which the street was located left open forever, that all. persons might use it. This right is founded in the contract of the parties, will pass to those who succeed to the plaintiff’s title, and it is not within the power of the original grantor nor of his subsequent grantee to abridge that right: Schenley v. Allegheny, 36 Pa. 29 and 62; Birmingham Borough v. Anderson, 48 Pa. 253; Commonwealth v. Moorehead, 118 Pa. 344; Ermentrout v. Stitzel, 170 Pa. 540; Quicksall v. Philadelphia, 177 Pa. 301; In re Melon Street, 182 Pa. 397; Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92; Commonwealth v. Shoemaker, 14 Pa. Superior Ct. 194; Witman v. Smeltzer, 16 Pa. Superior Ct. 285; Fereday v. Mankedick, 172 Pa. 535. Asbury had laid out and opened the street upon his own land, and his deed to Carroll, in addition to the cove
When a covenant in a deed involves a mere restriction upon the uses to which the owner of property may devote it, without vesting in the owner of the dominant tenement a right to enter upon and use the servient tenement for any purpose, the condition and surroundings of the property may so change that an insistence upon the restriction would become inequitable, and a court of equity would refuse its assistance to specifically enforce the covenants: Duke of Bedford v. Trustees of British Museum, 2 Mylne & Keen, 552; Orne v. Fridenburg, 143 Pa. 487. A right of way appurtenant to lands necessarily involves the right to enter upon and use the lands subject to the easement, and where the existence of the legal right is clearly shown, it can only be lost through an adverse user, which amounts to a denial of the right, or proof of facts which constitute an estoppel. There was in this case no question as to the right of the plaintiff, nor was there any ground for holding him estopped to assert his right The
The decree is affirmed and appeal dismissed at costs of the appellants.