16 Pa. Super. 285 | Pa. Super. Ct. | 1901
Opinion by
Prior to his death, in 1895, James W. Deppen was the owner of a certain tract of real estate in the village of Wernersville. He had caused this tract to be laid out in a plan of lots and streets, and a draft or map of this subdivision to be made. He had sold lots in accordance with this plan to various purchasers. Among the streets marked and located upon this plan was one of the width of sixty feet called Elm street. At the time of his death the title to the ground over which Elm street ran and the lots which abutted thereon was still in him. By his will, which was duly proved, he gave to his executors an unrestricted power to sell his real estate. The executors, under the authority conferred by the will, caused the plan of lots to be duly recorded in the recorder’s office of Berks county in plan book 1, page 3. On November 21,1896, they sold the property, the same being for convenience divided into purparts. Purpart No. 2 embraced lots Nos. 149 to 164, inclusive, being all the property embraced in said plan between the Lebanon Valley Railroad, an alley which was not named, an alley named Railroad alley, and lands of Benneville Lerch. Purpart No. 3 was bounded by Market street, by other lands of the Deppen estate, by Railroad alley and by lands of Benneville Lerch, and comprised lots Nos. 132 to 139, inclusive. These purparts together included all the land next to that of Lerch between the railroad and Market street, and included within their lines the land over which Elm street was located upon the plan, the street being laid out along the line of the Lerch property. The conditions of sale referred to the Deppen plan of lots, a draft of which was thereto attached. Purpart No. 2 was sold to Ephraim Wit-
The references to the plan contained in the deeds have the effect of making that'plan a part of the deeds, and this constitutes a dedication of the streets and alleys laid down upon the plan to the use of purchasers as public ways: Birmingham Boro. v. Anderson, 48 Pa. 258; McCall v. Davis, 56 Pa. 431; Ferguson’s Appeal, 117 Pa. 426; Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92. This defendant accepted his deed with both actual and constructive notice and knowledge of the location of this street, designed for the use of the different owners of portions of the tract of land of which his lots were a part, and, as between him and his grantor and those who cotemporaneously accepted grants from the same party, he acquired the right to use all the streets upon the plan, and took his own land subject to the easement of such streets as were by the plan located upon it: Ermentrout v. Stitzel, 170 Pa. 540. The right in the streets which these cotemporaneous purchasers acquired, as against their grantor and each other, was not con
The jury found a verdict for the plaintiff for a definite sum of money, subject to the opinion of the court upon a single question of law reserved. The question was reserved upon a point submitted on behalf of - the defendant, in the following language, viz: “ The property of the plaintiff and defendant, as conveyed by deed of Deppen’s executors to plaintiff and defendant, including the grant of the plotted street and the large Swiss barn erected thereon, was sold under proceedings in partition, in which Mr. Witman, the plaintiff in this action, was plaintiff. Having received his share of the purchase money, he is now estopped from having said barn and permanent improvements removed in order to open said street to the width of sixty feet.” The court reserved this question and subsequently entered judgment in favor of the defendant non obstante veredicto. It is not within the power of the court to reserve a question of -fact, or a mixed question of law and fact. “ When a verdict is taken subject to the opinion of the court upon points reserved, the facts should be distinctly stated, as well as the question raised by them; and the judgment, to be pronounced upon the solution of the question of law to be reserved, should also be specified, as in a case stated:” Shelly v. Dampman, 1 Pa. Superior Ct. 115; Wolf v. Jacobs, 10 Pa. Superior Ct. 54; Yerkes v. Richards, 170 Pa. 346. When the question reserved involves only the construction and effect of a written instrument, it is not necessary that the instrument should be set out at length in the question reserved, and the same rule applies as to a record. It is sufficient if it be set forth in the pleadings, or, if its execution be -admitted, that it be fully identified. The question reserved must be one of law only, yet the record must show the specific fact, or facts, on
Judgment reversed, and judgment is now entered on the verdict in favor of the plaintiff for six cents, with costs.