North Front Street
52 Pa. Super. 345
Pa. Super. Ct.
1913
Check Treatment

Opinion by

Porter, J.,

The councils of the city of Philadelphia, by ordinance approved February 27, 1909, authorized the opening of the part of Front street in question and directed the proper city officers to notify owners of property over which the street passed that at the expiration of three months from the date of said notice the street would be required for public use. The notice to property owners, dated March 19, 1909, was issued in the proper form and is admitted to have been served upon the owners of property on April 3, following, and on the nineteenth day of that month, upon the petition of a property owner, the court of quarter sessions appointed viewers to ascertain and assess the damages and benefits, if any, which property owners had sustained or received by the opening of the street. The viewers reported awarding, inter alia, damages in the sum of $1,400 to Elbert R. Loper as an owner of property abutting upon the street. The appellant, Funk, filed exceptions to the report of viewers, averring that Loper by contract in writing dated May 25, 1909, had agreed to sell and convey the property to him, Funk, and that in pursuance of said agreement Loper had actually conveyed the property to him by deed dated June 29, 1909; that the physical opening of the street had not taken place until in the year 1910, and that the report of the jury of view was filed March 29, 1911, and that the damages in question ought to have been awarded to the appellant, instead of to Loper. The court below overruled the exceptions and confirmed the report of viewers; from which decree we have this appeal.

The contention of the appellant is founded upon the *348theory that the part of Front street upon which his lot abuts was a public highway before the city passed this ordinance directing it to be opened as such; that having been an open public highway prior to the ordinance it must be assumed that the damages awarded by the viewers were for the change in the grade at which the street was proposed to be opened, and that as the physical change had not been made at the time he acquired title he is entitled to the damages. This is an appeal from a decree of the court of quarter sessions dismissing exceptions to a report of viewers and does not properly bring before us the evidence upon which the jury of view and the court below passed. The question attempted to be raised is one of fact; was Front street prior to 1909 a public highway, over which the municipal authorities had acquired control? If the appellant was not satisfied with the manner in which the viewers and the court below disposed of the questions of fact, his proper course was to appeal and demand a jury trial. We have, however, examined the evidence upon which the appellant based his contention in the court below and find that contention to be without merit. The fact that Front street had been placed on the city plan, as a plotted street, in 1867, and confirmed by the court of quarter sessions on May 15, 1871, and that property owners had subsequently made conveyances calling for the street as a boundary, did not constitute the street an open public highway, of which the municipality had control: Whitaker v. Phœnixville Borough, 141 Pa. 327; Gamble v. Philadelphia, 162 Pa. 413; Neely v. Philadelphia, 212 Pa. 551. Even if it be assumed that there was sufficient evidence to establish a tender of a dedication of the street by the Wyoming Villa Land Co., there was no evidence whatever that the tender had been accepted by the municipal authorities, and there must be an acceptance, by the public, of the dedication in order to constitute a street an open public highway, for which the public is responsible: Carroll v. Asbury, 28 Pa. Superior Ct. 354.

*349When the city, on April 3, 1909, served notice upon the property owners of its intention to open the street, the right to the damages, as well as the right to maintain an action to recover them, immediately accrued to those who were at that date the owners of the abutting land: Uhler v. Cowen, 199 Pa. 316. “As to abutting owners there is an actual taking within the meaning of the law when the street is ordered to be opened and proper notice has been served upon property owners affected thereby. The Act of Assembly of May 26, 1891, P. L. 117, provides a method of procedure to determine all questions incidental to the taking of such property as may be necessary for the street improvement, including damages that may result from making or changing the street to the established grade:” Ogontz Ave., 225 Pa. 126; Sedgley Ave., 217 Pa. 313. Loper was the owner of the property at the time the notice was served and he alone was entitled to all the damage legally recoverable.

The decree is affirmed and the appeal dismissed at cost of the appellant.