26 Pa. Super. 167 | Pa. Super. Ct. | 1904
Opinion by
From the record of this case and the agreement of counsel attached thereto, it appears that pursuant to an act of assembly dated. April 20, 1869, P. L. 1191, Olney road was opened forty feet wide, and is included in the street now in controversy between Fifth and Sixth streets of the city of Philadelphia. By ordinances passed March 17,1884, and March 15, 1887, this road was regularly placed upon the city plan as a public highway or street not exceeding sixty feet in width, confirmed by the board of surveyors on December 17, 1888, and the name changed to Tabor street.
In 1892 the department of public works, under the authority of ordinances, revised the city plan and Tabor street was stricken therefrom and Clarkson avenue was laid on other ground and substituted therefor, which proceedings were confirmed by the board of surveyors on December 19, 1892. On April 7, 1898, an ordinance was duly'enacted by which Clark-son avenue was stricken from the city plan and Tabor street was regularly reinstated (providing, “ that the owners of ground within the lines of said streets shall first enter into an agreement satisfactory to the city solicitor indemnifying the city against all damages by reason of the striking of said Clarkson avenue from the plan and the placing thereon of Tabor street,”) upon the same location as said street had been placed upon, the city plan on December 17,1888. Pursuant to this condition A. Howard Ritter, who was at the time the owner in fee of the north half of Tabor street between Fifth and Sixth streets (and the land abutting thereon), delivered to the search clerk of the bureau of surveys a deed of dedication dated June 16,1898, for “ all that certain lot or piece of ground forming the north half of the bed of Tabor street or road from Fifth street to Sixth street.”
In consideration “ for and of the advantage to them (the
It further appears that Ritter sold to the appellees from his plan certain lots abutting on the north side of Tabor street, by articles of agreement (all being similar in terms) by which the grantees therein were to pay the purchase price in monthly instalments. Ritter covenanted in each agreement, that when one half the purchase money was paid he would execute and deliver to the respective grantee a deed in the usual form in fee simple for his lot, and the remaining one half of the purchase money should be secured by bond and mortgage. In each agreement it was stipulated that the title to the lot should not pass until all payments were made according to the terms of the agreement and a deed for the lot delivered.
The deed of Ritter was more than a release of damages by an abutting owner for a prospective change of grade. It was an absolute conveyance by an abutting owner of the north half
In the absence of evidence to the contrary the law presumes that the date of the deed is the date of its delivery, but it is no more than a presumption, and in this case the deed did not become operative until it was formally accepted. As a condition precedent to its acceptance a special agreement was exacted from Ritter and another abutting owner to indemnify the city against all damages that might be claimed or awarded by reason of striking Clarkson avenue off the city plan and placing Tabor street thereon. These appellees did not have a legal title to any abutting land when Ritter sold the north half of the body of the street to the city. The handing of the deed by Ritter to the bureau of surveys was but a step toward its completed delivery. It was on a blank furnished by the city which clearly showed by its indorsements that it required the approval “as to form ” by the city solicitor and “ by the board of surveyors,” by the chief engineer and surveyor before it would be accepted. Furthermore, oil that date (June 16,1898), Tabor street did not have any existence. The plan of lots of Ritter’s land, the ordinance of April 7, 1898, the agreement between Ritter and the city, the revision of the city plan on July 25, 1898, and fixing the grades to which the street was physically graded in 1901, determines beyond question that the deed of Ritter (and release of damages) was held with his knowledge and consent by the city until the conditions required by the ordinance should be met, and that the deed became operative (on August 1), 1898, when it was formally accepted by the city, and the rights of the appellees are to be determined by the conditions existing as of that date. Had the proceeding to open been in the quarter sessions and the viewers met on that date, Ritter’s release of damages would bar the appellees’ claim: Righter v. Philadelphia, 161 Pa. 73.
The appellees’ lots were designated in the article of agreement as being “ on the plan of the lands ” of Ritter, and in the
Ritter clearly defined his grant in his deed after the street had been opened and its grade established, and there was no subsequent deviation from plan or grade though the actual physical work on the ground was not done until 1901. The claim of a property owner for the opening and grading of a
In Clark v. Philadelphia, 171 Pa. 30, it is held “ the vigilance of the city officers can in mo.st cases protect the city’s interests by seeing that dedications of land or waivers of damages for opening are not accepted unless they include waiver of damages as to grade and that ordinances for opening shall also provide for grading so that the acts shall be concurrent and claims for both be necessarily presented in the same proceeding.” This is just what was done in this case by the city; the acceptance of the deed of dedication was withheld until the proper ordinances were enacted and the grades established by the official plan which was produced before the viewers and is filed with their report, and the Act of May 26, 1891, P. L. 117, provides that the award “shall include all damages due to the
Howley v. Pittsburg, 204 Pa. 428, is not applicable under the facts of this case. In that case the street had been located upon the city plan by an ordinance approved January 12, 1891, and dedicated the same day. The grades were not established until January, 1896. The Act of May 26, 1891, P. L. 117, did not apply to the facts shown by that record. The sole question was whether an owner of land who acquired title after the passage of an ordinance authorizing the grading can recover for the injury to his property caused hy the grading and it was held that he could. Whether the act of 1891 calls for a new rule for the assessment of damages caused by the grading of a street wTas expressly eliminated from the case then considered, and it was further held that the defendant in that case did not have standing to object to the plaintiff’s light to recover inasmuch as the city had instituted the proceeding and had not filed exceptions to the report of the jury or taken an appeal from its decision. There was, no evidence of an opening of the street after the passage of the act, and it did not apply.
The decree of the court below is reversed and the awards in favor of Barbara Meyer, A, B. Rudolph and Mary Joseph, and Charles, Peter and Katie Schweitzer, minors, by their next friend and mother, Mary Joseph, are stricken off.