88 Pa. 453 | Pa. | 1879
delivered the opinion of the court, May 5th 1879.
This was an action of trespass on the case to recover damages for the alleged obstruction of a right of way. The land over which the defendants in error claimed the right, lies immediately west of and adjoining their lot; but in the adverse possession of the plaintiff in error. Both parties claim under title derived from Leeds. The claim of the defendants in error rests on an implied grant, by reason of their grantors having designated the western boundary of the lot as a twenty-feet street.
It is settled law in this state, that when a public street or highway is called for as a boundary in a deed, the grantee takes title in fee to the middle of the street, if the grantor had title to it, and did not expressly or by clear implication reserve it: Paul v. Carver, 12 Harris 207; Same case, 2 Casey 223; Cox v. Freedly, 9 Id. 124; Trutt v. Spotts, 6 Norris 239. Where the street called for a boundary is not a public highway, nor dedicated to public use, the grantee does not take title in fee to the centre of it, but by implication acquires an easement or right of way only over the lands: O’Linda v. Lothrop, 21 Pick. 292; Robinson v. Myers, 17 P. F. Smith 9.
It appears that the existence of the street in question, had been recognised on paper, at an early day; but it was not on the city plan, and had no marks or signs on the ground designating it. It was referred to by Leeds in his deed of 1850, under which the
The question now presented is, whether the defendants in error can sustain this action under an implied covenant made more than twenty-one years before suit brought, when no possession was ever given or taken under the deed. This suit is not between any of the parties to that deed. It is not an action of covenant based on the contract. It is for a tort. The claim to recover rests on the alleged tort of the plaintiff in error, in erecting and maintaining extensive buildings on the land claimed to be a street. The view we take of the case, makes many of the questions relating to an action of covenant irrelevant, and we therefore refrain from considering them. The complaint of the defendants in error is not for the disturbance of an easement once enjoyed, but substantially to recover in an action ex delicto for damages to a right, based on an implied covenant, of which they never had any possession. After this great lapse of time, we think the present action cannot be sustained under the whole evidence, and the jury should have been so instructed. The sixth assignment is therefore sustained. It is unnecessary to consider the others any further than they are covered by what we have already said.
Judgment reversed.