Shetter v. Welzel, 242 Pa. 355

Shetter v. Welzel

242 Pa. 355 | Pa. | 1913

Opinion by

Mr. Justice Stewart,

If Swatara street extending West from Crescent street in the City of Harrisburg, was an existing plotted, though unopened, street appearing on the official map of the city when in 1873 James Calder made his conveyance to Tippett, plaintiffs’ predecessor, wherein he described the lot sold as “situate on the corner of Swatara and Crescent streets, being lots Nos. 1, 2, 3, 4 and 5 in the plan of lots laid out by said James Calder, bounded and described as follows: Beginning at the corner of Swatara and Crescent streets, thence along Crescent street 100 feet, more or less, to corner of lot No. 6 on the plan of lots aforesaid......thence along Swatara street 75 feet 4 inches to Crescent street, the place of beginning,” the reference in the deed to Swatara street must be understood as adopted merely for purpose of convenient description.

“Where reference is made by a grantor to a street located by a municipality, but unopened, it is merely for the convenient description of the property”: Tesson v. Porter Co., 238 Pa. 504. In such case no implied covenant would arise from the deed on Calder’s part that Swatara street should always be maintained as an open highway, and, therefore, no liability would result to Calder because of subsequent relinquishment of the city’s right to open the street by vacating it as *358plotted: Bellinger v. Burial Ground Society, 10 Pa. 135. Nevertheless, as was ruled in Dobson v. Hohenadel, 148 Pa. 367, Calder, as grantor, would, as against Tippett, he estopped by his own deed from denying the existence of the street, or interfering with the use of it by his grantee. This same doctrine is recognized in Bellinger v. Burial Ground Society, supra. And what we have said would be true whether upon a vacation of the street by the municipality the ownership of the street remained in Calder, or had passed to his grantee, Tippett. It is unnecessary for the purposes of this case to decide to whom it belonged after vacation. The defendants here having derived whatever title they have to the ground relinquished by the city for street purposes from James Calder through intermediate conveyance, stand in his shoes; and if Calder would have been estopped as against Tippett and his successor in title from denying the existence of the street, no less must they he.

If, on the other hand, Swatara street was no longer a plotted street on the city plan when Calder conveyed to Tippett, the effect of the reference in his deed to Swatara street as a boundary according to a plan or plot of his own duly'filed and recorded, created an implied covenant on his part that he would open the street at least for the use of his grantee.

“When a proprietor of land lays it out in lots which he afterwards conveys according to a plan which shows that the lots are upon a. street, the conveyance of the lots bounded on the street im a dedication of the land covered by the plotted streets to the use of the lot owners as a means of access to their lots”: Dobson v. Hohenadel, supra.

So that it comes to this: in considering the question of the right of these plaintiffs to the free and unobstructed use of Swatara street, it is a matter of no consequence when the rights of the city in the street were relinquished by vacation. If the vacation was effected;: by Act of Assembly, prior to the time when Calder con*359veyed to Tippett, Calder was chargeable with knowledge of such fact, and by describing the lot conveyed as bounded by Swatara street, according to a plan of lots made by himself, he impliedly covenanted with his grantee that such streets should be kept open.

“Of course an owner may dedicate his ground to public use as streets by dividing his land into lots and streets upon the plan made for the purpose, and sell the lots in accordance therewith. But in such case, the acts done are his own acts, and because they are his they justify the inference of dedication”: In re Opening of Brooklyn Street, 118 Pa. 640. If the vacation was effected by the city ordinances subsequent to the deed from Calder to Tippett, while Calder would in such case not be liable on any implied covenant to keep and maintain Swatara street open, yet, having by his deed conveyed a lot bounding on Swatara street, he would be estopped from doing what would be inconsistent with good faith in the way of obstructing the enjoyment of that which he had granted.

These defendants have no other rights in what was Swatara street than those derived through James Calder; whatever limitations rested on Calder now rest on them, and these operate to restrain them from obstructing plaintiffs’ free access to the street. It follows that the injunction was properly issued. The assignments of error are overruled and the decree is affirmed.