25 Pa. Super. 188 | Pa. Super. Ct. | 1904
Opinionby
The plaintiff and defendant are residents and property owners in the unincorporated town of Devon, located in East-town township, Chester county, Pennsylvania, and both claim title through Coffin and Altemus, the dedicators of the “Plan of Devon.” The plaintiff seeks to have the defendant enjoined from occupying for private purposes and excluding the public from certain portions of Dorset and Exeter avenues, and maintaining fences and hedges within the lines of said streets as dedicated by their common predecessors in title. The learned judge of the court below found the following facts, viz : Lemuel Coffin and Joseph B. Altemus were in 1884 the owners of a tract of land, of which the lots of the plaintiff and defendant are a part, and caused the same to be laid out and plotted in blocks or squares, separated by avenues or streets. This was called “Plan of Devon,” and was recorded in the recorder’s office of Chester county on September 10, 1884. Coffin and Altemus, by deed dated March 9,1886, conveyed to the plaintiff, “ All those two certain lots or pieces of ground contiguous to each other, situate in the township of Easttown in the county of Chester and State of Penxxsylvania, designated as Nos. 112 and 113 on the ‘ Plan of Devon ’; ” the land was further described by metes and bounds and called for Devon and Waterloo avenues, two of the streets upon said plan. Coffin & Altemus, by deed dated May 1, 1889, conveyed to William T. Tiers a tract of land situate in said township, which tract was, by deed dated May 3, 1889, conveyed by Tiers to the “ South Devon Park.” The corporation last ■named, by deed dated November 16, 1891, conveyed ■ to John P. Twaddell, the defendant, “All that certain tract or piece of land situate in Easttown township, described according to a survey and plan thereof made by Samuel W. Garrigues, surveyor, on the fourth day of November, 1891,” the land being further described by metes and bounds and calling for Water
The deed of Coffin & Altemus to Tiers and that of the latter to South Devon called for the center line of Waterloo, Exeter and Dorset avenues as boundaries. These avenues, as indicated by said deeds, correspond exactly with their location upon the recorded “Plan of Devon,” and there is no evidence in the case, from which it could be inferred that these avenues came into existence in any other way than through a dedication by the “ Plan of Devon.” The deed of Coffin & Altemus to Henry Wickham, the plaintiff, was, on March 12, 1886, duly recorded, and referred to the “Plan of Devon,” and this had the same force and effect as if the plan, which was then of record, had been incorporated or copied into the deed. We are therefore to read the deed with the plan in it, and Exeter and Dorset avenues there appear as streets laid out for the use of the lot owners. Neither the grantors, nor those who through them subsequently acquired title to other portions of the tract could subsequently make changes which would deprive Wickham of the right which he had acquired to use as public highways the streets located upon the plan; Birmingham v. Anderson, 40 Pa. 506, and 48 Pa. 253. The
The learned judge of the court below arrived at the conclusion that there had been a dedication of the avenues, and that the defendant was maintaining a continuous trespass upon the rights of the plaintiff and other lot holders in the plan, but he held that the plaintiff must be denied the remedy by injunction because of his delay in asserting his right. The plaintiff lived within one square of the defendant’s property for almost ten years after the fences were erected and hedges planted, but did not abut on either Exeter or Dorset avenues. The property across the avenues from that of the defendant was uninclosed and not improved, and there was nothing upon the ground to indicate to an observer who did not employ a surveyor to locate the avenues that the full width of fifty feet had been encroached upon. There was some evidence that James H. Dawson had told the plaintiff that he, Dawson, had told the defendant that he, the defendant, “ was getting the street too narrow,” as the roads had been laid out for fifty feet. It did not appear, however, that this was communicated to Wickham before the planting of the hedge was completed, nor did it distinctly appear that Dawson reported to Wickham that the hedge as finally planted encroached upon
The one supposed, positive act of acquiescence by the plaintiff in the maintenance of the obstructions in the avenues, to which the court below gave great weight, was the part which he took in the planting of the hedge of Dr. Adler. The facts with regard to the occurrence were undisputed. Adler had acquired title to his lot by deed from Coffin & Altemus, in 1881; he had maintained a fence in front of his lot on Dorset avenue for years before the defendant purchased his lot and placed in the street the obstructions complained of. Adler determined in 1897 to replace the fence by a hedge; Wickham, who understood how such work ought to be done, undertook as an act of neighborly courtesy to see that the hedge was properly planted. He assumed that the old fence on the Adler lot
The case of the defendant was barren of equity. The only excuses for his intrusion upon the right of his neighbors which he attempted to establish by evidence were: (1) that streets forty feet wide were sufficient to meet the present requirements of public travel in that vicinity, and (2) that property in Devon had not been depreciated in value because of the obstructions which he had placed in the streets. It was not for the defendant to determine the width of the avenues in á beautiful and growing residential suburb of a great city; that question had been definitely settled by contract between his predecessors in title and those to whom they had conveyed lots in the plan. The mere fact that it is difficult to determine the damages sustained by lot owners from an intrusion upon the streets is one of the reasons for exercising equity jurisdiction in cases of this kind, as has been repeatedly held in the cases herein before cited and others to which they refer. The assignments of error are sustained.
The obstructions maintained by the defendant within the lines of Exeter and Dorset avenues consist in part of growing shrubbery and hedges, which may be much less liable to injury by removal at one season of the year than at another.
The decree of the court below is reversed, the bill reinstated, and it is now ordered that a decree issue restraining the defendant from using or occupying any part of Exeter and Dorset avenues, as located by the “ Plan of Devon,” for any purpose inconsistent with the use of said avenues as streets; and commanding and enjoining the defendant, prior to the first day of January, 1905, to remove from said Exeter and Dorset avenues, the fences and hedges which he has placed thereon, and restore said avenues to the width designated and laid down on the “ Plan of Devon; ” and it is ordered that the defendant pay the costs upon this appeal and in the court below.