194 Pa. 193 | Pa. | 1899
Opinion by
Arabella street in tlie city of Pittsburg was opened by ordinance passed February 28, 1896, and, it is alleged by appellee, within twenty-one years from the time it had been laid out on a plan of lots and streets adopted by the owner of the land through wliicli it now runs. The plaintiff, Anna M. Woodward, claims damages for the land taken on the north side of her property in so opening the street, and her right to recover depends upon whether, at the time it was opened by the municipal authorities, she owned the land to the middle of the way, free from any prior dedication to public use. Her contention is that under the facts as developed on the trial she could properly invoke the Act of May 9, 1889, P. L. 173, which provides, “ That any street, lane or alley laid out by any person or persons in any village or town plot or plan of lots on lands owned by such person or persons, in case the same has not been opened
In 1870, John Watson was the owner of the tract of land on which Arabella street is located. In that year the councils of the city of Pittsburg approved a plan of certain streets and avenues known as “ McFarland’s Grove Plan,” which included the street in controversy; but no ordinance was passed at that time specifically locating it. 'On June 29, 1894, an ordinance was passed approving, confirming and locating the streets and avenues as laid out in the plan of 1870, and on February 28, 1896, the city councils by ordinance directed the opening of - Arabella street. On the proceedings to recover damages claimed to have been sustained by the opening of the street under the last ordinance this appeal has come before us. In 1873 Watson conveyed a portion of his land at the northeast corner of Fifth and Aiken avenues to M. A. Woodward, husband of plaintiff, and the same extended along the latter avenue to within ten and'nine one hundredths feet of what is now Arabella street. In 1874 Watson made a plan of his land dividing it into lots and streets. It was surveyed in April of that year by R. C. Patterson. After it had been surveyed and a plan made, Woodward purchased a strip of land ten and nine one hundredths feet wide, extending from Aiken avenue eastwardly 110 feet between the lot which he had previously purchased and Arabella street. This gave him a frontage on the street, and he testifies that he purchased this strip “ on this plan,” the plan which had been made after the survey by Patterson. In the deed from Watson to Woodward for this strip of land, and in two conveyances subsequently made in the same year, the ground is conveyed to Arabella street. This street as laid out was fifty feet wide, and if it was on the plan as adopted by Watson at the time he sold to Woodward in May, 1874, the latter acquired a fee to the middle of it. This cannot be disputed in the light of Paul v. Carver, 26 Pa. 223, and the intervening cases down to Quicksall v. City of Phila., 177 Pa. 301. In March, 1875, Watson having been declared a lunatic, his
The light of Mrs. Woodward to recover damages for the taking of one half of Arabella street from her as the owner, to the center thereof, should have been submitted to the jury, with instructions that if Watson had sold her grantor the strip of land facing on the street according to a plan upon which he had laid out lots and streets, among them, the street in controversy, and that more than twenty-one years had elapsed from the time of her husband’s purchase until the city of Pittsburg had actually opened the street, she would be entitled to damages for the land so taken, if any had been sustained.
The judgment is reversed and a venire facias de novo awarded.