3 Pa. Super. 596 | Pa. Super. Ct. | 1897
Opinion by
The act which the plaintiff complains of was performed by
But even were the action against the corporation as well as the defendants, it is clear that under the evidence it could not be sustained.
The basis of the plaintiff’s claim is the contention that a public road “has been wrongfully and illegally appropriated and converted into a toll road ” by the turnpike company; and the operations of the company on this road form the ground of action. This appropriation was commenced in 1883, and became complete November 1, 1884. It continued unquestioned until this suit was brought, November 21, 1893. As against a private person, a long continued occupancy of a public highway for a public use, or for a private use not inconsistent with the public use, will be presumed to have been of right: Canal Co. v. Goldstein, 125 Pa. 246; Potter v. Traction Co., 176 Pa. 271. In the latter case it was said by Mr. Justice Mitchell : “ Whether the consent of the borough was necessary or not, it must be presumed in this action by a private citizen. Consent may be by ratification as well as by previous permission, and it was held in Pa. Schuylkill Valley R. R. Co. v. Phila. & Reading R. R. Co., 160 Pa. 277, that at least as to private parties, 'if not as to the municipality itself, consent may be waived by acquiescence without objection, in a long continued act.” There is still further ground on which the right here claimed by the turnpike company may be maintained. Granting that the company was not authorized by its charter to occupy a public road, and that at the outset it might have been restrained from doing so (Groff’s Appeal, 128 Pa. 621), it has since acquired rights that cannot now be questioned. Laying its route on a public highway, it made the expenditure necessary for converting this into a turnpike road. The conversion was made, and the turn
The turnpike road being thus substituted for the township road, the turnpike company succeeded to the authority of the supervisors as to the manner of its maintenance, including the method of drainage. If the company decided on a surface gutter, no private use of any part of the roadway can be allowed to interfere with it. The plaintiff’s use was a private use. We need not now consider the plaintiff’s rights as owner of the fee, for it does not appear in evidence that she owned the fee. In the declaration, the plaintiff’s land is described as “ fronting on the public road ” maintained by the turnpike company, and the appellee’s counter statement sets forth that it “ fronts for about one hundred feet on the road.” We cannot assume a point which is neither proved nor asserted. True, “a conveyance of lands bounded on a highway gives the grantee a title to the middle of the road, if the grantor himself had title to it, and did not expressly or by clear implication reserve it: ” Carver v. Paul, 24 Pa. 207; and a conveyance of land bounded on the side of a street has a like effect: Firmstone v. Spaeter, 150 Pa. 616. But as the conveyances under 'vyhich the plaintiff claims are not printed in either paper-book, we cannot determine their effect. Not unfrequently, roads along property lines are laid out wholly on the land of one owner to save the cost of moving-line fences. It does not appear on whose land this road was laid, and it is not shown that the plaintiff’s grantor had title to any part of it. Conceding, however, the plaintiff’s title to the fee, it gives her no right to interfere with the maintenance of the road and its accessories in the manner adopted by the turnpike company. The public use is paramount, and any private
As no right of action has been shown the judgment is reversed.