177 Pa. 301 | Pa. | 1896
Opinion by
The right contested is that of the plaintiffs to recover damages forthe opening by the city of Rúan and Leiper streets. By reason of their purchase of lots bounded by the streets the plaintiffs claim ownership of the land to the middle thereof. For many years stone has been quarried by them and their grantors from these lots, and from the beds of the streets, and at the time of the commencement of these proceedings the quarry had been worked to a depth varying from f orty to eighty feet. The streets as filled in by the city are not as high as the original surface of the ground.
In 1847 the land in question was part of a tract of five and a half acres owned by Peter and Rudolph Bucldus. In that year they made a plan dividing the land into lots and streets. This plan was recorded November 6,1847, and in January, 1848, the lots were sold at public sale. They were sold and. conveyed according to the plan and described as bounded by Rúan and Leiper streets, and these streets were mentioned in the deeds
The sale of lots according to a plan which shows them to be on a street implies a grant or covenant to the purchaser that the street shall be forever open to the use of the public, and operates as a dedication of them to public use. The right passing to the purchaser is not the mere right that he may use the street, but that all persons may use it: Dovaston v. Payne, 2 Sm. L. C. 154; McCall v. Davis, 56 Pa. 431; Davis v. Sabita, 63 Pa. 90; Transue v. Sell, 105 Pa. 604; In re Opening of Pearl Street, 111 Pa. 565. In the case last cited it was said that when one “sells and conveys lots according to a plan which shows them to be on streets he must be held to have stamped upon them the character of public streets. Not only can the purchaser of lots abutting thereon assert this character, but all others in the general plan may assert the same. The proprietor is in no condition to afterwards revoke this dedication.” Such a dedication was said in Heckerman v. Hummel, 19 Pa. 64, to be a contract with the public. The distinction between the sale of lots according to a plan made by the owner upon which streets are laid out and the mere reference in aid of description to streets projected by the municipality is manifest. In the former case the inference of dedication arises, in the latter it does not.
The dedication by the plaintiffs’ grantors in 1848 operated as a relinquishment of all claims for damages for the use of the land within the lines of the streets for street purposes, and no claim for damages can be sustained unless by reason of the act of May 9, 1889, P. L. 173. The language of the act is: “ That any street, lane or alley laid out by any person or persons in any village or town plot or plan of lots on lands owned by such person or persons, in case the same has not been opened to, or used
The judgment in each case is reversed with a venire facias de novo. '