148 A. 41 | Pa. | 1929
Argued October 1, 1929.
The Mahoning Creek extends westerly through the Borough of Punxsutawney and the land of the plaintiff, William Donahue, abuts upon the north side thereof. Adjoining his land to the west is that of Richard L. L. Davis, which also abuts on the creek for several hundred feet. Water Street, extending along the north side of the creek and near the bank thereof, had its western terminus, for many years, in plaintiff's land and seventy-nine feet from his west line. The borough, by ordinance duly approved December 2, 1922, purported to extend Water Street westerly through plaintiff's land of the width of fifty feet. A copy of this ordinance was posted on the land and plaintiff promptly took proceedings in court to test its validity, which are still pending. Thereafter, during May and June, 1923, Mr. Donahue built a garage within the limits of the highway as thus projected. By ordinance approved August 14, 1923, the *81
borough again extended Water Street through plaintiff's premises, the same as by prior ordinance, and extended it ten feet into the Davis land. The validity of this ordinance, although attacked by plaintiff, was sustained. See Donahue v. Punxsutawney Boro.,
We are unable to sustain the judgment. The borough having taken the land under the right of eminent domain and put plaintiff to the expense of employing counsel and contesting the case before the viewers, could not in *82
court change its position to a claim of the land by adverse possession. The rule as stated by Mr. Justice SIMPSON, speaking for the court, in Reese et al. v. Comrs.,
Furthermore, the evidence was wholly insufficient to establish a claim by prescription. This alleged seventy-nine feet extension of Water Street by prescription, began at a gate and ended at a board fence, in which was a gate or bars. It ended at the line of the Davis land and so far as shown the only use made of it was to reach his property or possibly that of the plaintiff, except on two occasions to reclaim some lumber carried down the creek in times of flood. The only evidence of a road on the ground was wagon tracks. It was never improved as a highway, had neither ditch, turnpike, nor fence, and that it was ever used at a greater width than for one wagon does not appear. Merely crossing a lot in going to and from a private residence, without more, would not create a public street by prescription; at most it would be evidence of a private right-of-way. Moreover, this was not the only way by which the Davis property could be approached. To claim a public highway of the width of fifty feet, under such circumstances, is unthinkable. A way by prescription, whether public or private, can never be wider than that used on the *83
ground: Ryman v. Girard Boro.,
There was no finding of special facts, so it is impossible to tell whether the jury found for the defendant because they found plaintiff had sustained no damages, as they might under the evidence, or whether, as is equally probable, they so found because of the conclusion, under the charge of the court, that the highway had become such by prescription.
When plaintiff built his garage he knew perfectly well that he did so in line of the highway which the borough proposed and was about to open, hence, he was properly burdened with the expense of its removal. Section 4 of article IV of chapter VI of the Borough Code of May 14, 1915, P. L. 312, 344, provides: "No owner or occupier of lands, buildings, or other improvements shall erect any buildings or make any improvements within the lines of the roads, streets, lanes, alleys, or courts laid out, widened, or straightened, or proposed to be laid out, widened, or straightened, after notice thereof. If any such erection or improvement shall be made, no allowance shall be had therefor in the assessment of damages." This is a complete answer to plaintiff's claim for removal of the garage and the trial judge properly so held. Whether the ordinance of December 2, 1922, was *84 valid or otherwise, it was notice to the plaintiff of the borough's intention to open the street, and he encroached thereon at his peril.
The necessity of adapting plaintiff's property to the new street was a proper matter for the consideration of the viewers, or jury, in estimating the damages and benefits, or for expert witnesses in arriving at their conclusions; but the amount plaintiff expended in so adapting his property, as a separate element of damages, was inadmissible and properly so held by the trial judge. See Dawson v. Pittsburgh,
Before the jury retired, plaintiff asked that a juror be withdrawn and the case continued because of the improper and prejudicial remarks of defendant's counsel in his address to the jury. The language complained of was entirely uncalled for and the trial judge might properly have granted the request. However, as he promptly disapproved the remarks and admonished the jury to disregard them and, in disposing of the rule for a new trial, expressed the opinion that plaintiff was not prejudiced thereby, we do not grant a new trial on that ground. See U.S. Circle Sewing Co. v. Reynolds,
The cross-examination of Davis to show he had indemnified the borough for any expense it might incur in the extension of Water Street should have been permitted *85 as showing his interest and thereby affecting his credibility.
The judgment is reversed and a venire facias de novo awarded.
