17 Pa. Super. 444 | Pa. Super. Ct. | 1901
Opinion by
By deed of Eliza Lewis et al., the plaintiff became the owner in 1884 of one and one fourth acres of land described by undisputed metes and bounds, and of an easement described in the said deed in the following words: “ Together with the right of ingress and egress thereto and therefrom to and from said
At the time of the plaintiff’s purchase from Mrs. Lewis his eastward fine was marked by stakes placed on the ground by his grantor so that the fine conformed to the eastern side of a residence on the premises. Opposite his property and thirty-six feet distant from it there had been erected five double tenement houses bn lots owned by the Allegheny Car and Transportation Company. Their title was acquired through conveyances from Mrs. Lewis, the plaintiff’s grantor. In 1886, Mrs. Lewis made a plot of lots, intended to be recorded and subsequently placed on record and embracing the five tenant house lots. She gave them numbers from one to twelve inclusive, and including the space thirty-six feet wide, designated as Lewis street, which lay between the lots and the plaintiff’s property on its easterly side. In each of the conveyances to the lot owners the several lots called for Lewis street as the westerly boundary. In 1888 the plaintiff and defendant were owners of triangular pieces of land which abutted on this space and which they exchanged by proper conveyances which recognized Lewis street as of the width of thirty-six feet. The title to all of the lots in Mrs. Lewis’s plan subsequently became vested in the defendant through deeds which referred to the recorded Lewis plan and described the lots as bounded on the west by Lewis street. This space called in the plan Lewis street extends a distance of 400 feet from Braddock’s field road as its northern end to the line of the defendant’s other property, where it has no outlet. After Mrs. Lewis acquired title to the whole tract and prior to the time the defendant bought the land east of Lewis street, the evidence shows that a cinder and board walk was constructed along the entire length of 400 feet from the Braddock’s field road to the end of the way, and the whole space was open to persons having occasion to use it, by wagons, carts, and on foot. A natural gas line, a water fine, a sewer, telephone and telegraph lines were placed therein by private corporations, and the way or street was once worked on and
The foregoing facts have been found by the court on sufficient evidence. The defendant in 1900 contended that the property purchased by the plaintiff in 1884 had its real frontage on the Braddock’s field road and that on the easterly side over the then private property of his grantors, there was a mere easement, and proceded to define and set bounds to the easement to which Smith was entitled over this thirty six foot space, by bisecting the street with a board fence placed parallel to the easterly and westerly lines so as to leave for the exclusive use of Smith a way fourteen feet wide. The defendant then appropriated the remaining twenty-two feet for its own exclusive use. A gate was erected by the defendant across the fourteen foot way at the Braddock’s field road end of the way. The building and maintaining of this gate and fence is the injury of which the plaintiff complains in this bill in equity.
The court below held that the laying out, the making, and recording of the plan of lots together with the thirty-six foot way as described in the plan, amounted to a dedication of that space as a street for public use, which by the subsequent acts of the public had been accepted as such, and that the deed to Smith conveyed to him a convenient right of access with horses and vehicles to the whole of the side of his property over the entire thirty-six foot way.
The parties to this bill claim title from a common source. The ground in dispute is clearly defined by fences which have been continuously maintained by the abutting owners since 1884. The grant as made by Mrs. Lewis, “ upon and over a strip of ground thirty-six feet in width ” along the easterly side of the Braddock’s field road to line of lands now or lately of the Allegheny Car and Transportation Company, was so exact in width
The sale of these lots by Mrs. Lewis according to her plan to be recorded, which was followed by placing it on record, implies a grant or covenant to the purchaser that the street shall be forever open to the use of the public, operating thus as a
The mere making of a plan, even if recorded, does not constitute a complete dedication until the rights of third parties have accrued -or by public use; the plan remains under the control of the owner and it may be modified or abrogated by him at will: Pittsburg v. Epping-Carpenter Co., 194 Pa. 318. After the rights of third parties have accrued and the public authorities have accepted the dedicated way by adopting the plan as a public improvement and have worked thereon, the original grant becomes irrevocable as a public way in its defined boundaries.
When one sells and conveys lots according to a plan which shows them to be 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 revoke this dedication afterwards: Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92; Woodward v. Pittsburg, 194 Pa. 198; Osterheldt v. Philadelphia, 195 Pa. 361; Com. v. Shoemaker, 14 Pa. Superior Ct. 194. It is to be observed that this bill is filed against those who stand in the shoes of the proprietor.
The borough which adopted this dedicated way as a public street is not before us. The fact that the entire frontage of 400 feet on the westerly side of Lewis street was undivided is not material. If Smith had subdivided it into lots, his rights and those of his grantees would be no greater and no less by reason of that subdivision. “ The right of ingress and egress thereto and therefrom to and from the Braddock’s field road over and upon a strip of ground thirty-six feet in width ” applied to the whole extent of frontage on that street so located and defined at that time, and he was entitled to free access to every part of that frontage. The additional fact that the public had access to it from but one end is not vital to its being a public street. This is not an opening of a street under the statutes but a dedication of an easement which ripened into a public street by the making and recording of the plan and by
The obstructions placed on this thirty-six foot street were a special inconvenience to the plaintiff. A street can no more be obstructed partially than closed altogether: Kopp v. Utter, 101 Pa. 27 ; Commonwealth v. Moreliead, 118 Pa. 344. The silence of the borough, joined with the objection of the property owner of all the lots on the opposite side of the street, which in this instance is the defendant, are not sufficient- to prevent his having equitable relief to enforce their removal.
The assignments of error are overruled and the judgment is affirmed.