O'Donnell v. Pittsburgh , 1912 Pa. LEXIS 661 ( 1912 )

Opinion by

Mr. Justice Mestrezat,

The facts have been found and stated at length by the learned chancellor in the court below, and a brief summary of them here will be sufficient to enable us to dispose of the case. George A. Bayard was the owner of certain real estate in Peebles township, Allegheny County, and on October 1, 1836, laid it out in lots, intersected by streets and alleys, which he called “Hatfield.” The plan was recorded June 1, 1846, without Bayard’s signature or Ms acknowledgment. On May 17, 1852, Bayard endorsed upon the plan as recorded a dedication of “all the ground contained in the above named streets and alleys or highways to be used and enjoyed as public streets and alleys forever,” and then signed and acknowledged the plan. The plan as recorded also contained the following endorsement in writing on its face: “Plan of lots near U. S. Allegheny Arsenal laid out by George A. Bayard, Esq.,- October 1st, 1836, C. W. Remington.” Subsequently the lots became a part of the borough of Lawrenceville and later, of the city of Pittsburgh. The plan contains forty-eight lots with four streets and two alleys, and on the easterly side appears a street called Allegheny Street. It also shows a line running its entire length from Butler Street to Clay Street twenty feet distant from the east property line with these words: “One half of a forty-foot street.” This was Allegheny Street, now Forty-ninth Street.

By deed dated September 9, 1839, Bayard granted and conveyed lot No. 1 in the plan to Ralph Lee. On May 27, 1850, by deed of that date, Bayard conveyed to Richard Fairfield “all that certain lot situate in the town of Hatfield, Peebles township, being the same lot marked in the plan of lots laid out by George A. Bayard, No. 32, bounded by Harrison street, Allegheny street, and Cherry alley, containing in front on Harrison street fifty feet, and running back one hundred feet.” The title to this lot has, by subsequent mesne conveyances, become vested in the plaintiff.

Allegheny street, now Forty-ninth street, has for many years been used as a public thoroughfare forty feet in width, one half of which, as above stated, was dedicated by George A. Bayard in his plan of lots. It appears by an ordinance enacted by the council of the borough of Lawrenceville that Allegheny street, subsequently known as Lathrop street, on the 5th day of March, 1866, was declared to be a public highway of a uniform width of forty feet from Butler street to the Allegheny river “as laid down in the original plan of George A. Bayard, in that portion of the borough which is known as Hatfield.” Forty-ninth street between the tracks of the Allegheny Valley Railroad and the Allegheny River has been vacated, and is now occupied for manufacturing purposes.

By an ordinance, approved July 18, 1910, of the city of Pittsburgh, Forty-ninth street between Harrison street and the Allegheny Valley Railroad, as shown in the plan of the borough of Lawrenceville, approved by the council of that borough March 22, 1867, was vacated. The plaintiff, the owner of lot No. 32 in the Bayard plan, filed this bill against the City of Pittsburgh, H. K. Porter Company, and the McConway and Torley Company. The bill contains nine prayers for relief, one of which is that the H. K. Porter Company be restrained from closing or in any manner obstructing Forty-ninth street, between Harrison street and the Allegheny Valley Railroad. This prayer for relief was granted by the court below, and a final decree was entered that a perpetual injunction be issued restraining the H. K. Porter Company “from closing or in any manner obstructing the southwesterly twenty feet of Forty-ninth street, formerly Allegheny street, extending longitudinally from Harrison street to the Allegheny Valley Railroad, * * * said twenty foot street being more particularly located and laid out on the plan of lots, laid out by George A. Bayard and of record in the Recorder’s Office of Allegheny County,” and further enjoining the H. K. Porter Company “from doing any act or acts whereby the plaintiff, Malachy O’Donnell, may be hindered or obstructed in the free and common use of said twenty foot street between said terminal points.” No decree was entered against the City of Pittsburgh or the McConway and Torley Company.

It will be observed that this appeal, which was taken by the H. K. Porter Company, does not raise the question of the right of the City of Pittsburgh to vacate a street laid out in the Bayard plan of lots and dedicated by him to public uses. It is true that the bill prays that the ordinance vacating the street be declared void, but the prayer was not granted, and the decree simply went against the H. K. Porter Company, restraining it from closing or obstructing the street. The right of the court ‘below, under the facts of the case, to enter the decree against the H. K. Porter Company is the only question for determination here.

If there is anything settled by judicial decision in this State, it is that a sale of lots according to a plan which shows them to be on a street implies a grant, or covenant to the purchaser that the street shall be forever open to the use of the public and operates as a dedication of it to public use; and that the owner of any lot in the general plan may assert the public character of any street and the right of the public to use it. The rights in dedicated streets acquired by a purchaser of lots by a deed referring to a plat are private contract rights, and are not affected by the failure of the municipality to act upon the dedication: 3 Dill, on Mun. Corp. (5th Ed.) Sec. 1083. The owner of real estate so long as he infringes no law may do with it as he pleases; he has the right to dispose of it in any legal way which he may choose; he may sell it as a whole, or in parts; he may lay it out in lots intersected by streets and alleys, and sell the lots with or without a grant to the purchasers and the public of an easement over the streets and alleys. If he lay the property out in lots, according to a plan disclosing such streets and alleys, and sells a lot, the law implies a grant or covenant on his part that all the streets and alleys on the plan shall remain open for the use of the public. The price paid for a lot is enhanced by the value of the easement in the streets and alleys appurtenant to the lot. The consideration is not only for the lot but for the easement as well. The proprietor of the plan therefore cannot revoke the implied easement or dedication; nor can the owner of any lot or lots, having purchased with a knowledge of the plan in accordance with which the lots were sold, obstruct or deny to tbe public tbe right to use any of the streets or alleys shown on the plan, The easement over the streets is appurtenant to every lot and becomes a property interest in the purchaser of the lot which may be protected by appropriate legal process.

In the case in hand, the right of the plaintiff, the owner of one of the lots in the Bayard plan, to restrain the H. K. Porter Company from building on or otherwise obstructing the twenty foot street in the plan is clear. Her predecessor in title purchased the lot, “being the same lot marked in the plan of lots laid out by George A. Bayard, No. 32.” As between parties claiming under Bayard and having notice of the plan of lots, it is immaterial whether the plan was signed, acknowledged, or recorded: Transue v. Sell, 105 Pa. 604. Such parties are charged with notice of all the plan contains, including the streets and alleys, their location and width. The sale of a lot by Bayard to Lee in 1839 according to the plan, in the absence of anything disclosing a different intention, was an irrevocable dedication of all the streets and alleys in the plan to pubic use: 13 Cyclopedia of Law and Procedure 455, Pittsburgh v. Epping-Carpenter Company, 194 Pa. 318, 328, and any subsequent purchaser of a lot in the plan can assert the public character of the streets. The plaintiff’s predecessor in title purchased from Bayard in 1840 and hence became the owner of an easement over the streets which was appurtenant to her lot of which she could not be deprived by a subsequent purchaser affected with knowledge of the plan. The H. K. Porter Company is the owner of two lots in the plan and the pleadings disclose that the company and its predecessors in title had notice that the lots were sold according to the Bayard plan. The plaintiff and the defendant both claim through Bayard and are affected with what appears in the chain of their title. The plan of lots is directly in the chain of title of each of the parties, and on the face of the plan is a declaration that the lots were laid out by Bayard on October 1, 1836. The defendant company is therefore estopped from denying to the plaintiff any rights which she acquired through her predecessor in title who purchased one of the lots in this plan.

There is no evidence that Allegheny street was a public thoroughfare or dedicated to public use prior to the dedication by Bayard. It was a public highway in the sense that it was dedicated by Bayard and was used by the public, notwithstanding it was not accepted by the municipality. The reference to it therefore in the deeds as a public highway was proper, and is no evidence that it was such prior to the dedication by Bayard. The plan of lots having disclosed the dedication of the streets and alleys in 1836, the burden was upon the defendant to show that the street known as Allegheny street had existed prior to the Bayard dedication. This did not appear by the pleadings or the evidence. In fact there was not a particle of evidence tending to show any such prior dedication. It is immaterial that the street was not laid out forty feet in width by Bayard, and that the other half of the street was dedicated by another to public use. The plaintiff and other purchasers of lots in the Bayard plan had the right to insist that the twenty feet of the street, shown on the plan, should be kept open for public use.

The act of June 16, 1836, P. L. 749, providing that streets, lanes and alleys within the City of Pittsburgh, laid out by private persons, shall be deemed public highways, has no application to this case. When the lots were laid out, the plan was made, and the plaintiff’s lot was sold to her predecessor in title by Bayard, the real estate was in Peebles Township, Allegheny County, and not within the territorial limits of Pittsburgh. Subsequently it became a part of Lawreneeville which later became a part of the city of Pittsburgh. Therefore at the time these lots were laid out and the plan was made Peebles township was not a part of the city, and the streets and alleys of the plan did not, by virtue of the act of 1836, become public highways. Under these circumstances, a city ordinance depriving a lot owner of his easement over the streets in the plan — a property right secured by contract — without compensation would offend both the federal and state constitution, and be void.

The decree is affirmed.