5 Whart. 18 | Pa. | 1839
The opinion of the Court was delivered by
From the case, as stated, it appears that in the year 1790, a street, called Washington, of fifty feet in width, was laid out, inter alia, through land, subsequently acquired and owned by the plaintiffs in error, lying in the District of Southwark, by commissioners appointed for that purpose, by an act of the legislature, passed the 29th of September, 1787, (2 Smith’s L. 435.) This street was never opened through the land of the plaintiffs in error; and according to the sixth section of the act, it would seem, could not have been without a previous order made and 'granted by the supreme executive council, directing it to be done, which does not appear to have been applied for or obtained. The plaintiffs in error however, having become the owners of the land in dispute, on the 29th of July, 1828, by their deed of that date, sold and conveyed in fee simple to Joseph Marshall a lot of ground, part of the land then owned and held by them, through which the street was laid out, calling for it as a boundary on the south side theieof. The lot thus conveyed is described in the deed as follows, viz.; “ a certain lot or piece of ground, composed of two adjoining lots situate on the south side of Prime street, in the District of Southwark and county of Philadelphia, beginning at a distance of about forty-seven feet westward from the west side of a new street lately opened, leading from Prime street aforesaid to Federal street, and parallel with Delaware Fifth street, called Arabella street, containing in breadth on said Prime street thirty-one feet four inches, and in length southwardly between parallel lines, running at right angles with Washington street, on the east line thereof sixty-eight feet two inches, and on the west line thereof seventy-three feet six inches and two-thirds of an inch, be the same in depth more or less, to Washington street; where it contains in breadth, east and west, thirty-one feet; bounded on the north by the said Prime street, on the east by other ground, belonging to the said party of the first part, on the south by the said Washington street, as the same may hereafter be opened, and on the west by other ground belonging to the said party of the first part; intended to be this day granted and conveyed to Thomas Bickerton and John Putron: being part and parcel of a certain lot of ground,
It is needless to go into an inquiry here, as to the extent of the interest, or whether any at all could have been acquired, in the soil of the street, by the District of Southwark, and the nature of the authority over it, that might or would have become vested in them, if they had taken possession of and opened it. Before they could have done this, they might have been compelled first, under the provisions of the seventh section of the act of 1787 to have paid the plaintiffs in error, or those from whom the latter derived their right to the land, upon which the street was laid out, the value of all the damages, which they were likely to sustain in their improvements thereon made anterior to laying out of the street, by the subsequent opening of it. Seeing then that it never cost the district any thing; and that part of the street, in question here, having been vacated and annulled by the same authority, under which it was laid out, before any use or possession was had of it by the district or the public, it is clear that the district cannot be said to have any right now, either to the soil or to a passage over it. Indeed it may be observed, that it would rather appear not to have been the intention of the legislature, under the act of 1787, to take from the owners of the lands within the district, upon which streets, roads, lanes or alleys might be laid out and opened in pursuance thereof, any thing beyond what was necessary to make such streets, roads, lanes and alleys answer
Had the street here been laid out and dedicated to public use, by the owners of the land at the time, through which it was located; and the lot afterwards been sold and conveyed by them or their assigns, as bounded by it, possibly a different question might have been involved in the transaction from any that can be made to grow out of this; though I do not see that it could have been raised very well in this form of action: and perhaps not in any form of action exclusively between these parties. In case of a lot, lying within the city of New York, being so sold, it seems to be held that the fee of the street remains in the owner of the land laying it out, subject however to an indefeasible privilege vested in the purchaser of the lot to a right of way on the street as an easement; which is considered as being founded upon an implied covenant contained in the deed on the part of the grantor, from the circumstance of his making the street a boundary therein, according to a map or plan made by him designating it as such. The street is also considered by means of the sale and the map, as dedicated to the public, by the vendor, when the municipal authorities shall think proper to open and improve it for that purpose. See the matter of Lewis street, (2 Wend. Rep. 472.) Livingston v. Mayor of New York, (8 Wend. Rep. 85.) Wyman v. Mayor of New York, (11 Wend. 486.) The cases also of the City of Cincinnati v. Les. of White, (6 Peters, 431,) and the Trustees of Watertown v. Cowen, (4 Paige’s Ch. Rep. 510,) lay down the rule, that if the owner of lands in a city or village lays the same out in lots and streets, and sets apart ground for a public square or common, it is a dedication of the streets or square to the public, of which the grantees cannot be deprived. And Mr. Justice Thompson, who delivered the opinion of the Court in the first of these two cases, seems to think that streets in a town or city may require a more enlarged right over the use of the land, in order to carry into effect the purposes intended, than may be necessary in an appropriation for a highway in the country; that even the fee itself may be held to remain in abeyance, until the city or town should become incorporated, and a competent grantee thus created to receive it, when necessary to effect the end and design of the dedication or appropriation. 6 Peters, 438-9.
The judgment of the Court below must be reversed, and judgment rendered by this Court for the plaintiffs in error.
Judgment accordingly.