Shamokin v. Helt

250 Pa. 80 | Pa. | 1915

Opinion by

Mr. Justice Mestrezat,

This is an issue framed and tried in the court below to determine the title to ,a small triangular piece of land in Shamoldn Borough, Northumberland County. The plaintiff borough alleges that in 1853 one William L. Helfenstein, the common source of title, being the owner of a large tract of land of which the piece in dispute is a part, laid the tract out in lots and made a plan showing the lots, streets and alleys and thereby dedicated them to public use, one of which streets being eighty feet wide and crossing the piece of ground the title to ’which is in controversy in this issue. Subsequently the Helfenstein tract was included in the Borough of Shamoldn when it was incorporated, and in 1865 the borough council passed an ordinance providing that all streets, lanes and alleys opened or laid out or drawn or marked on the plans or plots of the borough within the corporate limits were declared to be public streets, lanes and alleys. The plaintiff borough claims that by reason of the dedication of the streets and alleys by the owner of the plotted land and the subsequent action of council, it acquired the title and right of possession to the land in dispute for a public street or highway. The. defendants have a paper title to the premises, and they deny that the strip of land is a plotted street or designated as such on the Helfenstein plan of lots, and aver that if it was on the plan as a street that it has never been opened to, or used by, the public and, therefore, the Act of May 9, 1889, P. L. 173, applies and determines the issue in favor of the defendants. The case was submitted to the jury who found for the defendants. The plaintiff has taken this appeal.

In an elaborate opinion denying the motion for a new trial, the learned court below clearly demonstrates the correctness of the verdict. We have reviewed the evidence in the case, and are of opinion it fails to show that tbe alleged street was on tbe Helfenstein plan and, therefore, dedicated to the use of the public as a highway, or that a street was ever opened or used by the public over the land in dispute. The court left both questions to the jury who found against the plaintiff’s contention. The learned judge points out in his opinion that there are no lines, names or figures on the map or plan of lots showing that Helfenstein intended to appropriate the strip of land in question as a public highway and that no street is designated on the property in dispute by lines or otherwise. The opinion correctly says: “If there was a dedication of the locus in quo for public use it was by virtue of the action of the owner in 1853......It has not been shown that a street or public highway was ever opened upon or over the premises involved, or that the same was ever used as a public highway.” The Act of May 9,1889, P. L. 173, provides that “any street......laid out by any person;.....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 by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been, or shall be laid out.” If therefore there was a dedication of the street by Helfenstein, this act applies and the learned court should have so held as a matter of law and directed a verdict for the defendants.

Judgment affirmed.