36 Pa. Super. 418 | Pa. Super. Ct. | 1908
Opinion by
Prior to 1876, a large tract of land in the northerly portion of the city of Wilkes-Barre was laid out by its owner in building lots, and a plan thereof, showing the lots and streets, was placed on record. One of these streets was designated as Maxwell street, and the plaintiff’s husband became the owner of one of the lots abutting on it. The deed is dated April 8, 1899, and the description is &s follows: “A lot of land beginning at a point on the Southerly side of Maxwell Street, City of Wilkes-Barre, a common corner of lots numbered 119 and 121, on a plot of lots herein referred to. . . . Being lot No. 121 on the plot of lots, and belonging to the estate of Luther Kidder, deceased, which plot is recorded in the office for the recording of deeds in and for said county,” etc. The city of Wilkes-Barre in 1878, by an ordinance duly enacted, adopted Maxwell street as one of the public highways of the city.
An owner who makes a plot on which spaces are left indicating the dedication of roads or streets not previously projected by the public authorities, and sells lots with reference to these plots, cannot recall his dedication, for he leaves the street to be opened by the proper local authorities at such time as the public interest may require, and of this they are the judges: Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92. References to a plan contained in a deed have the effect of making that plan a part of the deed, and this constitutes a dedication of the street and alleys laid down upon the plan to the use of the purchaser as a public way. The plaintiff’s husband accepted his deed, with both actual and constructive notice and knowledge of the location of the street designed for the use of the different owners of portions of the tract of land, of which his lot was a part: Ermentrout v. Stitzel, 170 Pa. 540; Witman v. Smeltzer, 16 Pa. Superior Ct. 285; Richardson v. City
No title can be acquired against the public by user alone, nor loss to the public by nonuser. Public roads are not destroyed by long continued encroachments or permissive trespass. The public is not deprived of its right, by such encroachment. The fence located on the highway, under the undisputed facts of this case, acquired no right on account of time or expenditure. A street can no more be obstructed partially than closed altogether, and as said in Commonwealth v. Moore-head, 118 Pa. 344, authorities in support of the above propositions might be multiplied indefinitely, were it necessary. Anything which closes or obstructs a road that has once been opened is a nuisance, and may be abated either by the proper officers or by any private citizen: McMurtrie v. Stewart, 21 Pa. 322. The dedication of a street by the owner, and the acceptance by the public stamp it as a public highway: Commonwealth v. Shoemaker, 14 Pa. Superior Ct. 194; Wickham v. Twaddell, 25 Pa. Superior Ct. 188; Oakley v. Luzerne Borough, 25 Pa. Superior Ct. 425.
The Act of May 9, 1889, P. L. 173, does not in way apply to such a case as is disclosed by the uncontradicted testimony in this record, for the reason that Maxwell street was not only a public highway by .reason of the dedication, but added to this was an acceptance and continuous public user under the direction and maintenance of the municipal authorities.
The only assignment of error was in giving binding instructions to the jury to find a verdict for the defendant, which is overruled and the judgment is affirmed.