277 Pa. 135 | Pa. | 1923
Opinion by
In its bill in equity in this case, the City of Pittsburgh alleges defendant wrongfully took possession of and erected buildings on a tract of land located along the Monongahela River (an interstate navigable highway), between 16th and 17th streets, in what was formerly part of the Borough of Birmingham, which in 1872 was consolidated with the city; it prayed a mandatory injunction to compel a removal of the' buildings, and a perpetual injunction forbidding defendant to thereafter use the property. An answer was filed denying t'he city’s right, but not challenging the jurisdiction of equity; in
So far as it is important to be considered here, the title to the land in dispute starts with a deed made December 1,1801, by John Ormsby to Isaac Gregg and Sidney, his wife, for a tract of fifty acres of land fronting on the river. Their title, of course, extended to low watermark, subject only to the public’s right of navigation between this and high watermark.
On October 30,1811, the Greggs conveyed two adjoining pieces of ground, part of said tract, one to Thomas Bell and the other to John Nicholson. It is admitted that, except as regards the location, the descriptions are alike, and hence it is only necessary to quote the first of the two, which is a grant of “A certain lot or piece of ground No. 1 in Sidneyville, in the Township of St. Clair and County of Allegheny, bounded and described as follows, to wit: Beginning at low watermark on the south side of the Monongahela River......[thence by various courses and distances back] to low watermark, on the aforesaid river, and thence up said river 8.05 perches to the place of beginning. Bounded on the east by lands belonging to the heirs of John Ormsby, on the south by lot No. 8, on the west by lot No. 2, and on the north by the Monongahela River, [and] containing one acre, with the reduction of a street of thirty feet......The above described lot or piece of ground is bounded and begins on the top of the river bank at a post and by a line running along the said bank......And the said Isaac Gregg, and Sidney, his wife, only convey away what right and title they may have to the ground between the bank and low watermark.”
With but a slight'verbal change, we agree with the city that this grant operated as “a conveyance of land by general warranty deed, embracing the [land down to high watermark, and as a] quitclaim deed for any right and title the Greggs had to the ground between [it] ......and the low watermark.” We also agree that the
Inasmuch as the deeds do not state where the thirty-feet-wide street (later called Water Street), referred to in them, was or was to be, it became important to establish this necessary fact aliunde; and since, by reason of the great lapse of time, death had removed all the witnesses, who could have testified regarding the plan and the location of the street on the ground, — if it was located, — the city, which had the burden of proof, — since iti was endeavoring to take from defendant a property in its possession, — was compelled to produce such documentary and other written evidence, on the subject, as it could find, and, failing in thus establishing a title, to prove a prescriptive right.
In considering the plans produced, it must be steadily borne in mind that, for the reason already stated, it is a matter of indifference what they purport t'o show as to the lines of the lots, the only open question being whether the city has established a right to the land in dispute, which is between the street and low watermark of the river. In part of its argument the city has assumed that the street was at the edge of high watermark, and has elaborately contended that the result of this was that all riparian rights were in the public and all accretions became vested in it. It is not necessary to consider
The limitation of the controversy, as thus stated, renders it unnecessary to consider at length the documentary evidence produced. Turning first to the plans, we find that the earliest in point of time is the Barbeau Plan, dated January 27, 1831, which does not show any street, but only an open space along the river, without any designation regarding its ownership. The next is the Remington Plan, made February 24, 1837, for official use in the opening of Perry Street. It shows a thirty feet wide street, “laid out by I. Gregg,” paralleling the river, but at some distance from it, and defendant’s property lines crossing the street and the tract beyond it, and running to the river. It is signed by the surveyor and the road jury, who were, we are told, thoroughly acquainted with the locality. The third is dated March 14, 1839, and was made by some unknown person for the purpose of showing the effect of plotting a street “100 feet plus [in width] to low watermark,” parallel with and skirting the river; the fourth, dated September 16, 1848, and made by R. E. McGowin, discloses what would have' resulted from the laying out of a street along the river “150 ft. wide more or less to low watermark”; and the fifth, also by Mr. McGowin, dated April 5, 1851, is in some respects like the fourth, its only additional purpose apparently being to designate the encroachment of the river at that time, and not to fix the actual line of the street, or the then ownership of the land between it
None of these plans indicates that the street actually ran along high watermark, and none of them shows that the city had any title to the ground in dispute, or to any other ground in like situation. Several of them disclose a wish on the part of the borough to have the land, but this very fact point's to the conclusion that defendant’s record title had never actually been divested.
There were numerous acts of assembly and ordinances offered in evidence, amply showing a desire of the borough to get the property, but never an actual taking of it. We need not review them at length, since they do not express any ownership of the borough or city, and, with one exception hereafter noted, do not disclose any attempt to comply with article IX, section 10, of the Constitution of 1790, article IX, section 10, of the Constitution of 1838, or article I, section 10, of the Constitution of 1874, each of which stood in the way of a taking, except upon entering security or making compensation for the land taken, or giving the lot owners an occasion, by judicial proceedings, to have their damages assessed. The 14th Amendment-to the Constitution of the United States provides, inter alia, “nor shall any state deprive any person of......property, without due process of law,” and this cannot be obeyed unless the owners shall have been given “a fair opportunity for submitting the issue to a judicial tribunal for determination” : Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287. So far as appears by the present record there was no attempt to comply with that constitutional requirement, save in one instance where, pending the assessment of damages, the Act of March 13, 1849, P. L. 159, rendered nugatory the attempt of the borough to take the
These acts and ordinances disclose, however, certain facts which indicate that the city’s present contention is entirely an afterthought. For instance, the Act of March 28, 1836, P. L. 204, authorizing the opening of Perry Street through defendant’s property (and under which the borough did open it, as shown on the Remington Plan hereinbefore referred to), avers this property was bounded by the Monongahela River and not by Water Street. By an ordinance of the borough, dated May 28, 1856, it is recited that “Isaac Gregg, former proprietor......dedicated a portion of the ground along the bank of the Monongahela River for a public street, which said street so dedicated has not been located, or the boundaries thereof properly defined,” and then provided for the opening of Water Street, forty feet wide, at some distance from the river, and ordains that all of the ground between the street and the river “shall be improved and occupied as a public wharf or landing.” It is found and not denied, that at this time the borough had no statutory authority to take ground for a “public wharf or landing,” and “there is no evidence that Water Street, as located by the ordinance of 1856, was ever opened or improved.” From this ordinance two things are evident, both telling against the city: (1) At this date the street was not supposed to run to the river; and, (2) The borough did not then claim the space between the street and the river had theretofore been dedicated to a public use.
So, also, the judicial proceedings proven, so far as relevant, antagonize the city’s contention. When the borough undertook to appropriate this property under an ordinance dated August 13, 1848 (in connection with which the McGowin Plan of September 16, 1848, above referred to, was prepared), defendant’s predecessor in title filed a petition alleging he was the owner of the plot now in dispute, and applied for a jury of view. His
Enough has been said to show the documentary evidence does not require us to reverse the decree of the court below, and hence we turn to the city’s final contention that the uncontradicted testimony shows a prescriptive right by adverse user.
It is conceded there was ample evidence of the existence of a street or road, commonly known as Water Street, which was maintained by the property owners and not by the public, sometimes used by the latter but principally by the former, and for more than thirty years, as already stated, occupied by the Pittsburgh & Lake Erie R. R. Go., and the Pittsburgh & White Hall R. R. Co., to the exclusion of the public.
There was also evidence of lumber, etc., being taken from boats on the river and hauled across the plot between Water Street and the river, but it shows only vague statements regarding the ground in dispute. All
Since a prescriptive right can arise only by satisfactory proof of an adverse use, open, notorious and long continued, we cannot say the court below erred in its finding that “the weight of evidence sustains defendant’s contention that the beach was not in general use by the public above 16th Street.”
“An owner may suffer a permissive use by the public for all purposes of passage, jointly with himself, without in any degree impairing his right to terminate such privilege at any time” (Weiss v. Borough of South Bethlehem, 136 Pa. 294); hence, since the controlling facts upon this point were attempted to be established by parol, the weight to be given to the testimony was for the trial judge: Duffey v. Jennings, 247 Pa. 388; Gongaware’s Est., 265 Pa. 512. This being so, the usual rule applies that we will not reverse findings of fact except where there is clear error (Cruzan v. Cruzan, 243 Pa. 165; McIlvaine v. Powers, 270 Pa. 341), which in the instant case we do not discover.
The decree of the court below is affirmed and the appeal is dismissed at the cost of appellant.