25 Pa. Super. 392 | Pa. Super. Ct. | 1904
Opinion bt
At the time of filing the bill and for some years prior thereto Margaret Steiner, one of the defendants, was the owner of a lot of ground upon which was erected a two story frame dwelling house situated on the east side of Water street in the borough of Washington. The roof of the house extended three or four feet beyond the line of the front foundation wall and covered a balcony and underneath it a porch or veranda, the
It appears that Dr. E. W. Goerke, a civil engineer, was employed by the town council to make a plan of the borough, and that at a meeting of council held on June 11, 1879, he submitted his report, whereupon it was resolved that the plan as presented by him “be the official plan of the borough.” On the 28th of the same month, at a special meeting of council called by the chief burgess for the purpose, a motion that Dr. Goerke’s plan be adopted was carried unanimously. This is the map or plan referred to in the decree now under review. According to that plan, as explained by the oral testimony, the defendant’s house now projects into the street two feet ten and one half inches, this being two and one half inches less than the roof, balcony and porch extended towards or into the street before the alterations and repairs were made. So far as the
It cannot be successfully contended that a mere resolution of a borough council adopting a plan of the borough upon which the streets are represented will have the effect of widening or narrowing a street where the existing lines do not conform to those laid down on the plot. The accomplishment of that object requires legislative action, and, although it may be in the form of a resolution, the essentials to the validity of an ordinance must be observed. See Buchanan v. Beaver Boro., 171 Pa. 567. The law was thus stated by Justice Fell in Howard v. Borough of Olyphant, 181 Pa. 191: “ While legislation by borough councils may be by ordinance or resolution, the requirements which are essential to the validity of an ordinance must be observed in the passage, approval, recording and publication of resolutions where the action of council is legislative.” As it is not claimed that these requirements were observed with regard to the resolution of June, 1879, and the plan to which it relates, it may safely be assumed that it did not have the effect of changing the lines of Water street and of making any part of the lot in question a part of the highway which was not included in it before. Indeed, that effect is not strenuously claimed for it by the plaintiff’s council. What they asked the court to find was, that the plan was merely an ascertainment of the line of the street at this point. The learned judge distinctly finds that the borough had not sought to change the lines of the street as established. Hence it seems unnecessary to discuss the question, suggested in his opinion, as to the right of a borough, under paragraph five, sec. 27, of the act of 1851, to interfere with the owner’s use of his laud abutting on a street, after the street has been widened on the official plot so as to include it, but before an opening ordinance has been passed or the damages have been assessed. It being conceded that there was no intention to widen the street, that question does not arise.
But the learned judge goes on to say that the borough had a right, by its surveyor, to establish this line as the line of the street, and, prima facie, the survey made was the right one and correctly indicated the boundaries of the street; its order was an
We come now to what we conceive to be the controlling question in the case. The testimony shows that Water street is part of a highway running through the borough which had existed before the time to which the memory of any witness extended. It does not affirmatively appear that this highway was laid out by legal proceedings, or pursuant to formal dedication by the landowners. We are not to be understood as saying that it was not established in either of these ways ; all that we say is that the evidence does not affirmatively show that it was so laid out. Unquestionably it is a public highway; but, so far as the testimony shows, the rights of the public rest on immemorial user, and in determining their extent we must be governed by the principles applying to the establishment of highways in that manner. When a dedication to public use, and the opening of a street to public travel by the owner, are followed by its actual use by the public as a highway, the right in the public may become complete and absolute within a much shorter period than twenty-one years. But when the right is dependent upon adverse user alone, it does not become complete until the expiration of that period: Commonwealth v. Llewellyn, 14 Pa. Superior Ct. 214. In the latter case the user must be adverse, uninterrupted, and exclusive of any proprietary right of the former owner: 2 Dillon’s Mun. Corp. (4th ed.) sec. 637; Weiss v. South Bethlehem, 136 Pa. 294, at p. 305. “ The use which will establish such a right must be defined, uniform adverse, and under claim of right, and must have continued for twenty-one years:” Commonwealth v. Phila. & Reading R. R. Co., 135 Pa. 256. See also Root v. Commonwealth, 98 Pa. 170, and Irwin v. Dixion, 50 U. S. 10, as to the effect of a permissive use by the public concurrently with a use by the landowner for private purposes. A street railway company
Decree reversed and bill dismissed at the cost of the plaintiff.