173 A. 682 | Pa. Super. Ct. | 1934
Argued April 17, 1934. Plaintiffs seek by a bill in equity to restrain defendant from obstructing and occupying for private purposes any part of certain public streets, the use of which he averred he was entitled to as ways appurtenant to lots owned by him. After answer filed, the case was heard and the lower court filed findings of fact and law and granted the relief prayed for. A decree nisi was first entered and notice was given to the parties as provided by Equity Rule 68, but an appeal was taken before the final decree was entered. The parties have, however, agreed at bar that the sole question raised shall be considered as if the final decree had been entered before the appeal was taken.
No exceptions to the findings of fact and law were taken by the appellant, the sole exception being to the *561
final decree. Although under Equity Rule 72 a final decree is assignable for error whether excepted to or not, yet under other rules matters required to be excepted to and as to which no exceptions were filed in the court below cannot be reviewed on the theory that the final decree covers all matters in controversy: Schwartz v. Wesoky,
We are all of the opinion that the single question raised must be answered in favor of the appellees. The plaintiffs were the owners of land in an unincorporated village known as Great Belt City. In the early 70's when explorations for oil began in Butler County and there was much activity in real estate on that account, the owner of a tract of land laid it out in lots with streets and alleys and caused a plan of the improvement, described as Great Belt City, to be recorded in the office for recording deeds for that county. The title of plaintiffs was acquired by deeds which described the land by block and lot number according to "the plan of lots recorded in Deed Book 41, page 1," and known as Great Belt City. The deeds likewise gave the streets and alleys by name as described on the recorded plan as boundaries. The defendant also took title to certain lots on the same plan and in the same vicinity, likewise described by reference to the recorded plan to which we have referred. The defendant having obstructed certain of the streets which had been used by plaintiffs as a means of access to their lots, the plaintiffs filed a bill asking that the obstruction be removed and that the defendants be *562 restrained from erecting any barriers or obstructions on such street and from polluting a stream passing plaintiffs' property.
"If there is anything settled by judicial decision in this State, it is 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; and that the owner of any lot in the general plan may assert the public character of any street and the right of the public to use it. The rights in dedicated streets acquired by a purchaser of lots by a deed referring to a plat are private contract rights, and are not affected by the failure of the municipality to act upon the dedication": O'Donnell v. Pittsburgh,
"That a man's right of access to his property is a valuable right which cannot be taken away without just compensation has been repeatedly recognized. In Chambersburg Shoe Mfg. Co. v. Cumberland Valley R.R. Co.,
We are unable to discover any merit in the contention that relief was granted which was not prayed for in the bill. The facts pleaded and the rights asserted clearly support the decree.
Decree affirmed at the cost of appellants.