Appeal, No. 130 | Pa. | Mar 2, 1908
Opinion by
The specifications of error in this appeal are defective, in that the final decree of the court below is not assigned for error : Watkins v. Hughes, 206 Pa. 526" court="Pa." date_filed="1903-07-09" href="https://app.midpage.ai/document/watkins-v-hughes-6247303?utm_source=webapp" opinion_id="6247303">206 Pa. 526; Kenworthy v. Trust Co., 218 Pa. 286" court="Pa." date_filed="1907-05-20" href="https://app.midpage.ai/document/kenworthy-v-equitable-trust-co-6248975?utm_source=webapp" opinion_id="6248975">218 Pa. 286. The question here raised is whether the language of the deed from Wellens to Ryan, by which the property was described as extending “ to the. middle line of Howard street (50 feet wide); thence along the middle line of said Howard street,” vested in the grantee and his successors in title, the right to the use of Howard street as an open highway, and entitled them to prevent any obstruction of, or the erection of buildings upon, such street. The learned
In Gamble v. Philadelphia, 162 Pa. 413" court="Pa." date_filed="1894-07-11" href="https://app.midpage.ai/document/gamble-v-philadelphia-6242347?utm_source=webapp" opinion_id="6242347">162 Pa. 413, a grantor had com veyed land as bounded by an unopened street. Justice Green, referring to the rights of the grantees, said (p. 421): “Beyond all question they had a right of free passage over the street, and it could not possibly be occupied by buildings, either gs against.the city or the plaintiff’s grantees. It was of no use
In Cole v. Philadelphia, 199 Pa. 464" court="Pa." date_filed="1901-05-27" href="https://app.midpage.ai/document/cole-v-philadelphia-6246281?utm_source=webapp" opinion_id="6246281">199 Pa. 464, we said (p. 465): “ The property in question was described as bounded by the line of Fifty-fifth street, which at that time was plotted, but .unopened. Under the rule of law settled in Gamble v. Phila., 162 Pa. 413" court="Pa." date_filed="1894-07-11" href="https://app.midpage.ai/document/gamble-v-philadelphia-6242347?utm_source=webapp" opinion_id="6242347">162 Pa. 413, and Whitaker v. Phœnixville Borough, 141 Pa. 327" court="Pa." date_filed="1891-04-06" href="https://app.midpage.ai/document/whitaker-v-phœnixville-bor-6240401?utm_source=webapp" opinion_id="6240401">141 Pa. 327, the appellant took title in fee to the land, as bounded by the street, and an easement only, over the bed of the unopened street.”
It is contended here by counsel for appellant, that by making the middle line of Howard street the boundary, instead of the side line, an intention is disclosed to vest the fee to one-half the street in the grantee, without conveying any easement in the remaining half: This suggestion does not commend it-
self to us. As the trial judge well says, if the intention had been to convey to a definite point in total disregard of the street, why should any mention of Howard street have been made ? If the street was not to be preserved, the eastern boundary could just as well have been defined as a course extending from Fisher avenue southwardly to Wellens street. Still less would there have been any reason for describing Howard street, as fifty feet wide. The fact that Howard street Avasreferred to as the.boundary, impresses us Avith the thought that the grantor intended that such a street should be opened, and that the grantee should have the rights of an abutting owner thereon. This conclusion is strengthened by the fact that the proposed street Avould, when opened be an extension of Howard street, as already opened to the north of Fisher avenue. As a conveyance, by a description bounding the property by Howard street, would, if such street had been opened, have conveyed the fee in the bed of the street as far as the center line, to the grantee, with an easement in the remaining half, we are of opinion that the use of the words “ to the middle line of ” really added nothing to the interest which would have been given by a conveyance bounded by the street, had it been opened ; nor would it have lessened in any way the degree of any such conveyance. But as a matter of fact, it appears that Howard street was not an opened public street. Under the authority, therefore, of Spackman
The decree of the court below was clearly right, and it is affirmed, and this appeal is dismissed at the cost of the appellant.