60 Pa. Super. 641 | Pa. Super. Ct. | 1915
Opinion by
At the time of the execution of the lease on which this action is founded, both of the parties to it contemplated the opening of Spring Garden street. The lease was made in October, 1905. The lot of ground, the subject of the lease, was described as “being in the line of Spring Garden street in said city, not yet opened.” The right conferred on the lessee was to continue, and. the rent reserved by the lessor was to be paid “until such time as Spring Garden street herein referred to shall be opened to public use by appropriate proceedings by the City of Easton.” The lessor further reserved unto himself the right to dedicate the said strip of land to public use in the following language: “In the event, however, that the said lessor should desire during thé term either to dedicate the said land to public use as a public street, or, if proceedings should be taken by the city to open Spring Garden street as a public street, ......the rental herein reserved is to cease,” etc. The lessor died in 1912; In the settlement of his estate, his
In the present action the plaintiff sought to recover about one year’s rental which she claimed had accrued under the terms of the lease and remained unpaid. The defendant’s contention was that there had been in fact a dedication of the said strip of ground to the public ; that it had passed into public use, and that the city, by a proper ordinance, had accepted the dedication whereby Spring Garden street had become, both in law and fact, one of the public streets of the city; that as a consequence the right to collect further rental had, by the very terms of the lease, expired. At the trial the controlling, if not the single question to be determined was whether or not there was evidence which would warrant a finding that there, had been a dedication by the owner of the strip of ground in question. The learned trial judge rejected many offers of testimony on the part of the defendant and finally directed a verdict in favor of the plaintiff. Because of these rulings the defendant appeals.
It has been many times held that in such cases dedication is a question of intention. In some instances the owner, by a single act, has furnished such unequivocal evidence of his intention to dedicate that he' could not thereafter gainsay the fact. But the existence of the intention may be shown by a series of acts, all consistent with and pointing to the intention, even though no single act relied on would conclusively establish it. It was upon proof of this character the defendant relied. It was shown, or offered to be shown, that the situation in the immediate neighborhood of the proposed street had materially changed after the execution of the lease.
The law to be applied in cases of this character is fully and elaborately discussed by Mr. Justice Potter in Waters v. Philadelphia, 208 Pa. 189. The learned justice quotes with approval the following language from Griffin’s App., 109 Pa. 150: “Dedication is a matter of intention, and when clearly proved, it is as complete in one day as in twenty-one years.” It was further shown that in the case of Weiss v. Bethlehem Boro., 136 Pa. 294, there was present the same controlling question we have now before us, to wit, the question of intention to. dedicate. The question in that case was submitted to the jury. They were properly instructed that a mere permissive use by the public of a strip of ground left open by the owner for his own convenience in the conduct of his business would not amount to a dedication. “The jury were further told that the . question whether or not there was a dedication depended upon the facts' in evidence as to the opening of the land, the character of the use by the public, the character of the property, the nature of the land and its surroundings, and all the other’ circumstances in the case, and if they found that there was an intention to dedicate on the part of the owner, they would be warranted in finding that there was an actual dedication,” etc. In concluding his opinion in Waters v. Philadelphia, Mr. Justice Potter uses language that in our judgment is perfectly applicable to the case before us and truly indicates the manner in which it should have been tried. “In the present case we think the question of dedication should have been submitted to the jury. The evidence showed a long use of the strip of ground in question by the public, as part of the pavement. Whether or not this was simply permissive, by the owner, and was accompanied
Some of the offers covered by the assignments are not quite self-explanatory. They refer to maps of certain dates which may have been easily understood by the trial judge and the jury, but these exhibits are not printed and it is not, as we have said, entirely clear for what evidential purpose they were offered. But without going further into detail, we have indicated the reasons why the case must be retried and the lines along which the trial should be conducted.
The judgment is reversed and a venire facias de novo awarded.