Commonwealth v. Kline

162 Pa. 499 | Pa. | 1894

Opinion by

Mr. Justice Williams,

The nuisance complained of in this case was the obstruction of an alleged public alley in the city of Altoona. The conviction or acquittal of the defendant depended upon whether the alley obstructed was a public highway; and this question, as the case was tried, depended on the construction of certain provisions in the act of assembly under ivhich the city was incorporated.

The twenty-first section of that act provided for a commission of several members, with authority to employ competent engineers and draughtsman, and charged them with the duty of making a general survey of all the territory included within the city limits, and a map or plot thereof. Upon this map they were to designate the several avenues, streets, lanes, and alle}^ then existing on the plot of Altoona borough, and to designate “ where new avenues, streets, lanes and alleys should be opened.” They were directed to lay out new avenues, streets, lanes and alleys “so as to conform as nearly as possible in their courses and distances ” to those already existing iir the borough of Altoona and the villages of Loudon and Loganstown which were included within the city limits. Having thus ascertained the location of existing streets and indicated where new ones should be opened, they were to return their work, with a map or plot, to the court of quarter sessions of Blair county for approval. When the approval of the court was formally made, the report was to be recorded in the office of the recorder of deeds, and thereupon the new avenues, streets, lanes and alleys so'designated and plotted were to be “deemed, taken and allowed to be, public avenues, streets, lanes and alleys of the city of Altoona and to be hereafter opened as is hereinafter directed by the provisions of this act.” The commissioners entered upon the work assigned to them, and prepared a map of the city showing existing streets therein, and the new ones laid out by them. Their report was submitted to the court of quarter sessions, approved and recorded. Among the new streets appearing on their map were Fourth and Fifth streets, and an alley extending from one of these streets to the other. The alley was without courses or distances or any note indicating its actual location on the ground. No monument or mark of a survey appears on the surface. Lines indicating the position of the allejr appear on the map, but the existence of these lines on the paper is all the evidence which the court and jury had to show that it was ever surveyed. It does not appear that the city ever opened the alley to the public, or that any action was ever taken in the quarter sessions to open it. Under this state of the evidence the commonwealth contended, and the court below held, that the report of the commissioners was conclusive of the question ; and that the alley was a public highway which it was an indictable offence to obstruct, because it appeared, although without courses or distances or other description, on the recorded plot of the city.

This ruling is the error assigned. The twenty-first section of the act incorporating the city of Altoona was intended to provide the new city with a system of streets, avenues, lanes and alleys in conformity with the system already established by the borough. The old streets were to be extended, and the new ones were to be laid out with reference to them. The act was not intended to take the opening of streets out of the hands of the city government or to divest the court of quarter sessions of its jurisdiction, but to provide the city with a general plan upon which it could work in the care of existing streets and in the opening of new ones. This is apparent from the phraseology of the section in speaking of the effect of the report of the commissioners, when it is approved and recorded, upon the new streets appearing on it. It declares that such new avenues, streets, lanes and alleys shall be “ deemed, taken, and allowed, to be public streets of the city,” not to be thereupon opened for public travel, but “to be hereafter opened as hereinafter directed by the provisions of this act.” It was the purpose of the draughtsman of this act to make provision in a later section of the act for the opening of these plotted streets when needed, but he failed to do so. The opening of these streets and alleys remains therefore under such general regulations as are applicable to cities of the third class. Until the)' are opened on the ground, they are simply plotted streets of which the owner of the ground over which they pass must take notice. He may use his ground until the city enters upon it, but if he puts any building or structure upon it after the street is plotted and its route recorded, he will not be allowed to recover for its value or for the cost of its removal. If upon the recording of the report all the new avenues, streets, lanes and alleys became at once public highways, then the landowners were entitled to their damages, if any were sustained by them by reason of the opening of such streets; and the statute of limitations would begin to run against them from the date of the recording. They might be in the undisturbed possession of the land while the statute was running, and find themselves barred of their right of action long before their actual possession was disturbed. Again if the report operated as an opening to public use, interest would begin to run against the city upon the damages sustained by the landowner from the date of the recording of the report. But interest begins to run only from the date of the actual taking: Weiss v. The Borough of Bethlehem, 136 Pa. 294. The mere plotting of a street vests in the public no right of user. Proceedings to open are necessary before a plotted street becomes an actual highway: Commonwealth v. The Railroad Company, 135 Pa. 256. The report of the commissioners was notice of an intention to appropriate the land, covered by the plotted streets, for use as highways whenever that should become necessary; but it did not presently disturb the owner’s possession or confer a right of user on the public.

If that is all the proof of actual appropriation by the city which the commonwealth has to offer, it is not enough, and the defendant is entitled to an instruction in his favor. The position that because the city took land from the defendant at one end of his lot, he may inclose against the public at the other end is of course untenable. The learned judge was quite right in his instruction to the jury, except as to the effect of the recorded report of the commissioners. In this he was mistaken.

The judgment is reversed and a venire facias de novo awarded.