| Pa. | Jan 30, 1870
The opinion of the court was delivered, January 30th 1870, by
The plaintiff in error, and plaintiff below, being the owner of certain real estate near or adjoining the village of East Liberty, Allegheny county, projected and laid out what.he .called the “ Orchard addition to East Liberty.” He procured a plan of the addition to.be lithographed, showing the streets and alleys, and numbers of the lots therein, and by this he held a public sale of the lots on the 28th of August 1865, at which he
The lithograph plan of the town, represented a street called “ East street,” as if laid out by the plaintiff on his own property; but it turned out in proof that this street was a street proposed' to be laid out by an adjoining owner on his own land, and which he never did lay out. Besides this, an alley on the rear of the defendant’s purchase which the lithograph represented as connecting with Aurelia street was a eul de sao, being cut off from that street by a narrow reservation, by the owner of the Dennis-ton town plan. These were material differences between the actual state of the property, and that in which the plaintiff represented it on his plan; and these differences, if they affected the value of the defendant’s purchase, constituted good grounds for an equitable defence to the payment of the purchase-money in full, and that is what the defendant below claims.
In McCall v. Davis, 6 P. F. Smith 431, this court held in a case arising out of the same facts we have here, excepting as to parties, in an opinion by my Brother Agnew, “ that where an owner of ground lays it off into town lots, with streets and alleys for their convenient use, and sells his lots accordingly, it is a dedication of these ways to the use of the purchasers. The plan which he exhibits to the bidders is the evidence of their existence and locationciting Birmingham v. Anderson, 12 Wright 253, wherein it was held that a plan or map thus referred to, becomes a material and essential part of the conveyance, and is to have the same force and effect, as if copied into the deed. It was also held in McCall v. Davis, that the vendor was liable for damages to a vendee for the non-existence of East street, and for want of a connection of the alley purporting to run into Aurelia street, and this whether the representation was fraudulent, or merely by mistake; “ that for his own positive acts which misled and injured, the vendor is liable.” One would suppose that all this would have satisfied the plaintiff below that he could not hold buyers of lots to contracts not made by them, or compel them to pay for ground differently situated from what he represented and induced them to believe was its situation. But it seems not.
The three assignments of error on this record are, to the refusal of the court to affirm the three points propounded by the defendant’s counsel, or either of them, viz.: “ That the Denniston reservation across the ends of the streets in his plan, and the restriction of the use of the streets to the use of the lots in his plan, were inoperative“ that it would be inoperative after the execution of the deed of the plaintiff of the 29th February 1869, dedi
The answers of the court to these points were entirely proper and adequate. Where one owns property by a title sufficient to give him entire dominion over it, he can grant it all, or reserve portions of it as he pleases. So may he dedicate 'it to uses not contrary to law, either public or private, and it is only by lawful process, or the assent of those for whose use the dedication was made, that any change can be made. It is not for one citizen to disregard the lawful exercise of rights by another. Nor can courts disregard reservations expressly and carefully made for a purpose not unlawful, on the principle de minimis. It is only when a matter is deemed utterly unimportant to carry out, that this principle operates. To the second point, the answer of the court was proper, and needs no discussion. The deed mentioned in it, did not supply the want of East street, which the plaintiff proposed in his plan, nor did it give a right of way over the reservation of the six-inch strip. -As to the last point, the answer is unexceptionable, and had it accorded exactly with the plaintiff’s prayer, it would have been manifestly erroneous. The plan recorded, was recorded after the deed was delivered to the defendant, and differed materially from the lithograph by which he bought. The recording of the plan, after the delivery of the deed to the defendant, did not go a step towards proving that the plaintiff had seen it at all, or was bound by it. It was, therefore, proper to instruct the jury that as it differed from the plan of the purchase, it would not bind the defendant, unless it had been shown to him, and had been assented to by him. This was the substance of the instruction. Seeing no error in any part of the record, the judgment is
Affirmed.