Frankford & Southwark Philadelphia City Passenger Railway Co. v. City of Philadelphia

175 Pa. 120 | Pa. | 1896

Per. Curiam,

This cause was correctly tried in the court below. We agree entirely with the views expressed in the charge of the learned judge to the jury. The lot in question was purchased by the plaintiff many years ago exclusively for its own use in laying tracks thereon for its railway, and it was continuously so used until in 1891, when upon the opening of Kensington avenue out to Frankford avenue, the plaintiff ceased using this lot for its railway purposes, but thereupon immediately fenced and boarded it in. The plaintiff also used the lot during all these years for the purpose of storing rails and other articles upon it and never ceased to assert its right to use and occupy the lot for its own purposes. To hold that, because the public were also allowed to make use of it for a short cut across between the two avenues, the plaintiff thereby lost its ownership of the land so as to forfeit its right to have damages when it was taken by the city for use as a park would be to maintain a very startling proposition, not sustained by any authority and very oppressive in its re-: suits. The facts necessary to establish a dedication do not exist in the case, and it is incredible that a right by adverse user could be acquired, when during the entire period the plaintiff was in full actual possession and constant daily use of the lot for its own purposes. We regard the case of Root v. Commonwealth, 98 Pa. 170, and Com. v. Phila. & Read. R. R. Co., 135 Pa. 256, as clearly applicable and controlling the contentions in this case.

Judgment affirmed.