260 Pa. 334 | Pa. | 1918
Opinion- by
The single question raised in this case is whether a deed describing property as bounded by a street plotted on the city plan but not opened, conveys to the grantee an easement over the bed of the proposed street, and entitles him to a right of passage even though the street is not opened and is subsequently vacated by the city.
In 1886, John Welsh, owner of a tract of land situated in Philadelphia sold a part of the property, including the lot here in question, to plaintiff’s predecessor in title by deed which described one of the boundaries on the land as extending “to the northeast side of Arbutus avenue thence along the said side of Arbutus avenue,” etc., “together with all the......ways, streets, alleys, passages ......rights, liberties, privileges, hereditaments and appurtenances” belonging to the premises. At the time of the conveyance Arbutus street was on the city plan but not opened, and the land over which it was plotted, as well as other land abutting thereon, belonged to the grantor. Plaintiffs acquired title in 1891, at which time there was a fence along the line of Arbutus street in which was a gate affording access to the street. Other parts of the property of John Welsh abutting on and including the bed of the street, have passed into the hands
Had Welsh, the common gi*antor, laid out his property in lots abutting on a street in accordance with a plan of his making, neither he nor his privies in title could be heard to deny to a subsequent purchaser of a lot abutting thereon the right to a continued existence and use of the street: Dobson v. Hohenadel, 148 Pa. 367; O’Donnell v. Porter Co., 238 Pa. 495; Shetter v. Welzel, 242 Pa. 355. Such, however, is not this case. The trial judge found, and in fact it was agreed between-counsel at the trial, that Welsh never plotted or adopted the street in question as part of the development of his property, consequently the conclusion of the trial judge that a reference to the street as a boundary conveyed no easement over it other than that which would follow as a result of the subsequent action of the city in opening it as plotted to public use, is amply sustained by the authorities. The distinction between the case where the owner of land lays property out in lots abutting on a street of his creation, and one where he merely recognizes in his conveyance a street plotted by a municipality is pointed out in Tesson v. Porter Co., 238 Pa. 504, where the earlier cases are fully reviewed. The following excerpt from the opinion is particularly applicable here (pages 509, 510) : “If anything is to be regarded as settled, it is that, when one who is the owner of a tract of land in a municipality cuts it up into lots and sells them as laid out on a plan which he has adopted, showing streets and alleys thereon, there is not only an implied covenant by him to the owner of each lot that the streets and alleys, as they ap
Tesson v. Porter was followed in Bell v. Pittsburgh Steel Co., 243 Pa. 83, where it appeared that although the entire plan of the borough had originally been plotted by a private company it was formally adopted by the in
Inasmuch as the obstructions objected to are not on that part of the vacated street on which plaintiffs’ property abuts, we deem it unnecessary to either discuss or decide the question to whom belonged the bed of the street after its vacation by the city.
The decree of the court below dismissing plaintiffs’ bill is affirmed with cost to appellee.