211 Pa. 1 | Pa. | 1905
Opinion by
In 1832 Third street of Philadelphia was plotted on the city plan and confirmed by the court of quarter sessions as fifty feet wide. In one of the districts, now forming part of the consolidated city, it was placed on a borough plan as fifty feet wide. In 1860 and 1886 it was confirmed as of this width in the present plan of the city. In 1888 Robert W. and Joseph Fitzell, these plaintiffs, became the owners in fee of a tract of land along Third street from Ontario to Westmoreland street, subject to the easement, the street being then plotted as fifty feet wide. In that year they dedicated Third street as plotted fifty feet wide between Ontario and Westmoreland streets. They also opened between these streets, two narrower streets, Wensley and Thayer, running at right angles to an opening into Third street. While the Fitzells were still owners of the whole tract, the city added ten feet to the width of Third street, plotting it on the city plan as sixty instead of fifty feet and actually
The street was not widened or the ten feet actually appropriated by the city until July, 1901. “The time of the actual opening ” (see Whitaker v. Phœnixville Borough, 141 Pa. 327), “is the time the law fixes for estimating the damages.” The plaintiffs being still at the date of the opening the actual owners in fee of the 188 feet fronting on Third street, claimed damages for the appropriation of the ten feet for that width. The learned referee finds as a fact that they are still the owners of that strip 188 feet by ten feet, but he asks, have they by reason of the conveyances in 1897 of the lots fronting on Third street plotted to be widened, impliedly covenanted with their grantees to give them an easement on Third street sixty feet wide between Ontario and Westmoreland? And he answers, such was the implied covenant; therefore, plaintiffs have practically sustained no damages because the city appropriated the ten feet as an easement for the population of the whole city, that is, as to damages he invokes in favor of the city the doctrine of de minimis.
Assuming, as the referee propérly assumes, that by bounding the lots on Third street then plotted on the plan, implied an easement sixty feet wide the width of the plotted street in front of their lots, it also implied much more. It carried with it the covenant of an easement sixty feet wide on the entire street between Ontario and Westmoreland streets. The lots conveyed, with but slight difference in the words naming Third street as the boundary, are substantially the same as concerns that line. They are “situate on the east side of Third street parallel with and along the east side of Third street,” and so with each description. There is no reservation of any part of the street by the grantors nor is there mentioned any fixed monument, natural or artificial, which would stop the right-angle line of the lot at the outer line of Third street. Clearly, under all our authorities, the implied covenant in the
The leading case in this state enforcing this general principle is Paul v. Carver, 24 Pa. 207, decided in 1855; it is followed down to Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92, decided in 1897, probably in number twenty cases, all of them adhering strictly to the same principle. The large number of cases since are to be ascribed to two causes, first, Paul v. Carver, was apparently inconsistent with two earlier cases, Union Burial Ground Society v. Robinson, 5 Wharton, 18; Bellinger v. Union Burial Ground Society, 10 Pa. 135, thus making the law confusing to the minds of the profession; and then, second, Paul v. Carver only held that the fee to the middle of the highway passed to the grantee unless the intention of the grantor to limit it by the outer line of the highway clearly appeared. Many attempts to so limit it by evidence dehors the deed in subsequent cases were made, but the rule has finally settled down to this, that to so limit there must be an express reservation, or the lines must be stopped short of the middle of the street or highway by a permanent natural or artificial monument. This brings us to the question involved in this issue.
Where a traveled street has been opened fifty feet wide but is plotted on the city plan as sixty feet and the grantors convey five lots aggregating 252 feet fronting on the street at the north end thereof as a boundary line, and still own 188 feet fronting on the same street at the south end thereof, what is the grantors’ implied covenant as to the width of the street on the part still owned by them ? As we have seen their covenant with their grantees is, that as to their lots, they take a fee to the middle of the street, and that they front on a highway
The law is plainty otherwise and supports the contention of the appellee that where an easement or other right is not expressed and is sought to be implied as attached to the grant of the fee, the same must clearly appear from the intention of the parties as shown by the terms of the grant, the surroundings of the property and the other res gestae of the transaction. This principle is recognized in Union Burial Ground Society v. Robinson, 5 Wh. 18, and has never been doubted;
In Whitaker v. Phœnixville Borough, 141 Pa. 327, the owner had conveyed an adjoining lot fronting on an avenue thirty feet distant from the center line of the same. It was held that under this description the fee of the bed of the street remained in the grantor at the time of the assessment of damages, but as he had conveyed a frontage on the street which affected the value of the bed of the street, that should be considered in the assessment of damages. In the case before us there was no conveyance of a frontage on the unsold lots. In Gamble v. Phila., 162 Pa. 413, the unopened street was designated as an existing street and it was held that the grantor had estopped himself from denying the existence of such a street so designated by his conveyance. And so with other cases cited by appellee, they have no application to these peculiar facts. As suggested by the referee, there is no case in which it is held that the grantor by a conveyance of certain lots fronting on one end of a public street, has thereby by im
As is said by Justice Green in Brooklyn Street, 118 Pa. 640 : “ When a municipal government lays out streets on the land of a private citizen, it is not the act of the owner in any sense, and hence there is no necessity for and implication of a covenant against the owner to give his land to the public without compensation.” The city has appropriated 1,888 square feet of plaintiff’s land for a public street; assume that under the statute they cannot build upon it since it was put upon the city plan and thereby swell damages, but they have not lessened its value by private grant of an easement. Their damages are substantial and capable of compensation and on that basis they should be assessed. The judgment of the court below is reversed and it is directed that a rehearing be held before the referee and plaintiff’s damages be assessed in accordance with this opinion.