Morris v. Philadelphia

199 Pa. 357 | Pa. | 1901

Opinion by

Mb. Justice Fell,

The object of this bill was to enjoin the city from improving Linmore street on the lines established by the board of surveyors in pursuance of an ordinance of city councils. The plaintiff is the owner of properties fronting on the street, which he purchased in August, 1889, without notice that his grantor had dedicated the street to public use 'by deed dated July, 1888, accepted by the city May, 1890, and recorded in August of that year. The street as originally laid out varied in width at different points from thirty to forty-six feet. The deed of dedication described the street as of the uniform width of forty feet, and purported to convey the street as physically opened. A width of forty feet includes part of a lot purchased by the plaintiff, in front of which the street as opened was but thirty feet wide, and there were other but less material variations between the lines of the street as they existed when the plaintiff bought and the lines as fixed by the deed of dedication. In 1899 the board of surveyors made and confirmed a plan in which Linmore street is plotted of a uniform width of thirty feet, and shortened at one end seventy feet. The proposed improvement of the street is in conformity with this plan.

The substance of the plaintiff’s contention is that, while the deed of dedication is inoperative and a cloud on his title as far as it conflicts with his rights as a purchaser without notice, it is in all other respects valid and effective; that the street as laid out has been dedicated by implication by the opening thereof and use for ten years and by the acceptance by the city as shown by legislation concerning it; that by both the express and the implied dedication the city covenanted to use and maintain the street as a public highway, and that it cannot now vacate it except in the manner provided by the act of 1854.

The ground covered by the street was conveyed to the city “ to have and to hold, to the same extent and with the same effect as if the said street had been opened by a decree of the court of quarter sessions for the county of Philadelphia, upon proceedings had for that purpose under the road laws of the commonwealth of Pennsylvania.” The deed gave to the city the same power over the street that it has over a street opened by adverse legal proceedings, and the right of the city to narrow or, vacate a street so opened under proceedings such as were instituted in this case is beyond doubt, and the liquidation or payment of damages is not a prerequisite to a legal vacation: Wetherill v. Penna. Railroad Co., 195 Pa. 156. As the street plotted on the city plan is wholly within the lines of the street as originally opened, no right of the plaintiff growing out of his purchase without notice of the deed to the city is interfered with. For any injury he may sustain by reason of the narrowing or vacation, he has an adequate remedy at law.

The decree sustaining the demurrer and dismissing the bill is affirmed.