24 Pa. 207 | Pa. | 1855
The opinion of the Court was delivered by
The owner of certain land in Moyamensing directed, in his will devising it, that a fifty foot street should be laid out through a part of it, either by his heirs or the public. It was afterwards laid out by the public and called Tidmarsh street. A subsequent Act of the. legislature vacated'Tidmarsh street, and the defendants, who are owners of lots adjoining it, claim the right to build upon and occupy the soil ad medium filum vice. The plaintiff asserts that this is an injury to him, because his property cannot be conveniently reached unless that street be kept open and unobstructed.
It is the general rule of law, well established by authority and founded in true policy, that a conveyance of lands bounded on a highway, gives the grantee a title to the middle of the road if the grantor himself had title to it, and did not expressly or by clear implication reserve it. We do not see anything here to take this case out of that rule. If, therefore, the street in question was
If the adjoining proprietor on one side of a vacated highway takes possession of its whole width, he on the other side may certainly maintain ejectment to recover his proper share. Whether a party so injured has a concurrent remedy by bill in equity, it is not now necessary to decide, for this bill complains of no such wrong. It speaks of the street as being still a public highway, complains that it is about to be obstructed, and prays that the defendants be enjoined against building upon or enclosing any part of it. This makes the case turn on the sole question whether it has been vacated or not.
The bill avers that the street was not laid out by the public. The answer denies this, and avers that it was laid out and opened by the proper public authorities. In the absence of evidence the answer must be taken for true. It is admitted that an Act of the legislature was passed vacating that part of the street now in controversy. If the Act of Assembly has any force, the street is vacated. But the plaintiff argues that the legislature has no constitutional power to vacate a public street without the consent of all the persons whose private interests are or may be affected by it. To open new highways, whether streets or country roads, and to vacate those which are useless, inconvenient, and burdensome, is a power which must reside somewhere in every well regulated government. In our own we have many laws conferring this authority on courts, on county and township officers, on city and borough councils, and on special commissioners. In very many cases, also, the General Assembly has, by its own direct and immediate acts, ordered that streets and roads should be vacated, as well as opened, widened, and otherwise altered. Do all these laws violate the constitution? We cannot find anything in that instrument with which they are in conflict. Surrendering the right of way over a public road to the owners of the soil, is not taking private property for public use, and the proprietors of other land incidentally injured by the discontinuance of the road are not entitled to compensation. A private road is private property, and an Act of Assembly to close it up without paying for it, would be depriving the owner of his property. But a public road belongs to nobody but the state; and when the government sees proper to vacate it, the consequential loss, if there be any, must be borne by those who suffer it, just as-they would bear what might result from a refusal to make it in the first place. It is true that there is much property in the Commonwealth whose principal value would be taken away by closing the avenues which lead to it; and
And now, to wit, March 12, 1855, the decree of the Court of Common Pleas of Philadelphia county, against the defendant, James W. Paul, is reversed, and it is now here decreed by this Court, that the bill of the plaintiff as against the said Paul be dismissed, and that the said Paul do recover his costs.