213 Pa. 177 | Pa. | 1906
Opinion by
It is settled by numerous decisions of this court that a sale of lots according to a plan which shows them to be on a street implies a grant or covenant to the purchaser that the street shall be forever open to the use of the public and operates as a dedication of it to public use: Transue v. Sell, 105 Pa. 604; Quicksall v. Philadelphia, 177 - Pa. 301. The proprietor cannot revoke the dedication, and the purchaser of a lot abutting on one of the streets as well as all other persons owning lots in the general plan may assert the public character of the street and the right of the public to use it: In re Opening of Pearl Street, 111 Pa. 565. “ Where one owns property by a title sufficient to give him entire dominion over it,” says Thompson, C. J-, in Davis v. Sabita, 63 Pa. 90, “ 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.” The fact that the plan of lots does not appear on the maps of the municipality is immaterial as between parties claiming under the original owner and affected with knowledge of his plan : Transue v. Sell, 105 Pa. 604.
Both parties to this litigation claim under Mrs. Tibbott, the common grantor. She was the owner in fee of a tract of land in Lower Yoder township, now situate in the city of Johns-town, Cambria county, and laid it out into building lots. In 1893, she began to sell the lots and in the conveyances they were described as adjoining and bounded by the streets and alleys designated on the plan. One of the streets named on this plan is Tibbott street. The lots on the south side of this street extended to an alley, running parallel with the street, and were sold to persons who improved them by the erection of buildings with reference to the street and alley. Three of the lots, at the intersection of Tibbott and River streets, are now owned by the plaintiff and were conveyed by Mrs. Tibbott
It is apparent from a statement of the undisputed facts that the defendant company and its predecessor in title had no authority, against the objection of an owner of another lot in the plan, to place obstructions on Tibbott street or any other street or alley designated on the plan of lots of which its real estate formed a part. By its deed, the Basic Brick Company took the lots conveyed to it subject to an easement by the public in the streets and alleys on which the land abutted. It held its lots subject to the same easement and with the same lights on the streets and alleys designated in the plan as the owners of the other lots had. It is claimed, however, as a defense to this proceeding that equity has no jurisdiction, and that the plaintiff has no right to the relief he seeks because of the acquiescence of himself and of his predecessor in title in the encroachments complained of, that the relief sought would be disproportionate to the alleged injury, that the damage to the defendant conn pany by granting the relief asked would be irreparable, and that the buildings and encroachments were built on the streets and alleys with the belief that no public or private right was invaded. We do not regard either of these positions as tenable. That equity has jurisdiction to give the plaintiff relief for the injury he has sustained we have no doubt. His right to have the streets and alleys kept clear of obstructions must be conceded under all our decisions. It is conferred by the grant contained in his deed, the validity of which is not questioned.
Nor will the alleged acquiescence or laches of the plaintiff and his predecessors in title avail the defendant company in this proceeding, and estop the plaintiff from asserting his right to have the obstructions removed from the street and alleys designated on the Tibbott plan of lots. The plaintiff contends that neither he nor those through whom he claims title consented to or acquiesced in placing the obstructions on the street and alleys, and the court found, in support of this contention, that from 1897 until the plaintiff became the purchaser of the property he was the agent of the owners, and as such protested from time to time against the encroachments. But aside from any objections which may have been made against the obstructions being placed upon the highways, the silence of the owners of the lots would not, under the facts of the case, prevent them now from demanding the removal of the obstructions. The defendant admits that its title papers call for Tibbott street and the alleys and refer to the plan, and the learned trial judge found as a fact, on sufficient evidence, that the defendant’s grantor, the Basic Brick Company, “ knew that it was encroaching upon and obstructing this street and the alley ways, though
It has been - distinctly ruled that in cases of this character the question of irreparable damages does not enter, and that the law does not afford an adequate remedy: Hacke’s Appeal, 101 Pa. 245. In that case it is said (p. 249) : “ It is not necessary that the owner should prove damage to entitle him to his property. . . . The court will not, unless under very exceptional circumstances, take into consideration the comparative injury to the parties from granting or withholding the injunction. The obstruction of a way by the owner of the land differs widely from the maintaining of a mill or factory which is in itself lawful, but by its noise, fumes or odors, becomes a private nuisance to a person in the vicinity. Here the question of irreparable damage enters. ... But not where a man 'buys land subject to an easement, or grants an easement. He cannot appropriate such property against the owner’s will and
We find no substantial error in this record, and the decree of the court below is affirmed.
