Higgins v. Borough of Sharon ( 1897 )

Opinion by

Rice, P. J.,

This proceeding was commenced by a petition to the court of common pleas for the appointment of viewers to assess the plaintiff’s damages caused by the widening and grading of Sharpsville street. The defendant’s motion to quash the proceedings was properly overruled for the reasons given by the learned trial judge. And as the grading and widening of the street were done at the same time, we see no reason to doubt that the damages for both could be assessed in one proceeding.and by the same viewers, or by the same jury on appeal. See Change of Grade in Plan 166, 143 Pa. 414; Righter v. Phila., 161 Pa. 73. We come then to the main question in the case, which is, whether the plaintiff was entitled to recover damages for the land taken in widening the street.

When there is a conflict between monuments, whether natural or artificial, and the courses and distances named in a deed, the former must control. It is also the general rule of law, well established by authority and founded in true policy, that 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: Paul v. Carver, 24 Pa. 207 ; Same v. Same, 26 Pa. 223; Cox v. Freedley, 33 Pa. 124; Transue v. Sell, 105 Pa. 604; Ott v. Kreiter, 110 Pa. 870; Firmstone v. Spaeter, 150 Pa. 616 ; Bliem v. Daubenspreck, 169 Pa. 282. A call for a street as a boundary which has simply been projected by a municipality, but not opened does not ordinarily raise a presumption of dedication which will estop the owner from claiming damages when it is actually opened: Brooklyn Street, 118 Pa. 640; Wayne Ave., 124 Pa. 135; Bellefield Ave., 2 Pa. Superior Ct. 148; Quicksall v. Phila., 177 Pa. 301: Lehigh St., 81* Pa. 85. But an owner who makes a plot on which spaces are left indicating the dedication of roads or streets not previously projected by the public authorities, and sells lots with reference to the plot, cannot recall his dedication, for he leaves the streets to be opened by the proper local authorities at such time as the public interest may require, and of this they are the judges. The right passing to the purchaser is not the mere right that he may use the street thus dedicated, but that all persons may use it. The dedication thus established operates as a relinquishment of all claims for damages for the use of the land for street purposes: Quicksall v. Philadelphia, 177 Pa. 301; McCall v. Davis, 56 Pa. 481; Davis v. Sabita, 63 Pa. 90; Trutt v. Spotts, 87 Pa. 339 ; Transue v. Sell, 105 Pa. 604; In re Pearl Street, 111 Pa. 565; Elliott on Roads, 89; Trickett’s Penna. Road Law, 432, 604; Davaston v. Payne, 2 Sm. L. Cases, 140 (American notes). No plausible reason can be suggested why the same principles should not apply where lots are sold by a plot or plan plainly indicating an unequivocal intention to dedicate land for the widening of an existing road or street in front of them. Is this not such a ease ? The plaintiff’s deed calls for the west line of Sharpsville street as the boundary on the east, and the lands of the Sharon Ry. Co. as the boundary on the west. If there were nothing further in the case there would be no question that although the actual length of the side lines of the lots thus described and conveyed is greater than the measurement given in the deed the call for Sharpsville street would control, and the plaintiff’s title would extend to the center of the street, as it then existed. But this is not the whole description; the lot is further described as “ purpart No. 3, as shown by survey and plot of James H. Nicolls, dated October 4, 1892.”

It appears that the lot was part of larger tract of which Amelia Munn died seized; that by her will she directed her executors to make sale of her real estate “ ou such terms and conditions as they may deem best, and malee, execute and deliver articles of sale and deeds therefor; ” that the acting executor caused a survey and plot of land to be made, whereby it was divided into three purparts, the first of which he conveyed to Carrie B. Munn, the second to James Fitzgerald, and the third to the plaintiff. On the plot referred to in the deed — a copy of which was attached to and recorded with the deed to Carrie B. Munn — the lots are described as fronting on Sharps-ville street which is represented as being forty feet wide; whereas in fact, — and this is also shown by the plot — the street as marked by the fences was less than forty feet wide at that point. In other words in plotting the land the executor cut off from the front of the track a strip of land five feet wide at one end and two feet at the other end, and added the same to the street as it actually existed upon the ground, and thus made it forty feet wide. When a map or plan is thus referred to it becomes a material and essential part of the conveyance, and is to have the same force and effect as if copied into the deed: Com. v. McDonald, 16 S. & R. 390; Birmingham v. Anderson, 48 Pa. 253; McCall v. Davis, 56 Pa. 431; Davis v. Sabita, 63 Pa. 90; Robinson v. Myers, 67 Pa. 9; Trutt v. Spotts, 87 Pa. 339; Schenley v. Pittsburgh, 104 Pa. 472. Construing the draft as if copied into the deed and as part of the description of the land sold, and all apparent inconsistency between the courses and distances and the calls vanishes; for it then becomes clear that the call was not for the west line of Sharps-ville street as it then existed and was marked by the fences but for the west line of the street as widened by the grantor and 'plotted on the draft. The draft, carefully drawn to a scale which was- incorporated with the deed for the very purpose of definitely fixing the location of this as well as the other lots, shows as plainly as if the words had been written in the deed itself that there is a strip of land lying between those two lines which was not intended to be included in the purparts into which the larger lot was divided. This precludes the idea that the grantor supposed them to be identical, or was mistaken as to the actual width of the street. Presumably he did not intend to retain title to this strip, and thus shut off his grantees from access to the street, but to dedicate it to public use, as part of the highway. The fact that the fence was left standing until the municipal authorities saw fit to appropriate the land thus dedicated does not rebut this presumption: McCall v. Davis, 56 Pa. 431; Ferguson’s Appeal, 117 Pa. 426.

But it is insisted that the right to dedicate lands to public uses belongs only to the owner of the fee; and such is the general rule of law. Thus a dedication by a tenant for years, or the owner of a particular estate, will not bind the reversioner or remainderman. It is to be observed however that under our statute the executor to whom is given by the will a naked authority only to sell real estate takes and holds the same interest therein, and has the same powers over such estate for all purposes of sale and conveyance, and also of remedy by entry, by action, or otherwise, as if the same had been devised to them to be sold, saving, of course, to the testator, his right to direct otherwise: Act of February 24, 1834, P. L. 70. Here the power was to sell upon such terms and conditions as the executors might deem best, and we are by no means willing to concede that they might not divide the land into town lots and open a way across or in front of them if in the exercise of their discretion the land could thus be sold for a better price. At all events it is difficult to see upon what principle the purchaser of one of the lots who has taken, subject to the easement can defeat it and appropriate the land to himself by denying the power of the executor. As was pointed out in a very well considered New Jersey case, executors having power to sell lands by the will of the owner in fee, represent their testator and may convey his whole estate, and the purchaser by accepting the deed consents to the limitations and qualifications therein contained. “There seems to be little doubt” say the court, “as to the powers of executors, in selling lands under a general power in the will, to divide it into lots and to lay out streets through it, and thus create easements of rights of way in the several purchasers, if the estate will be benefited by such disposition of the property.” After citing numerous analogous cases in support of this proposition the court proceeds: “ But whatever the right of the heirs or beneficiaries under the will of the deceased might have been to have enjoined the executors from converting part of the estate into streets, the defendant is estopped by his deed from repudiating their action or denying their power:” Earle v. Mayor, etc., 38 N. J. L. 47.

Upon the whole case, as presented by the evidence, we conclude that there was a dedication of the strip of land lying between the fence line and the lot lines, as described in the deed and draft, to public use as part of the highway, and, therefore, that the plaintiff was not entitled to recover damages for the taking thereof by the borough.

In view of the foregoing conclusion the ruling complained of in the second assignment of error becomes unimportant. But to prevent misapprehension on another trial, we remark that it was not competent to explain the draft and the deed by evidence of declarations of the grantor to the surveyor not made in the presence of or communicated to the grantee. The court committed no error in striking out that testimony. Nor was it competent for the surveyor to construe the deed; but it was competent-to prove by him where the lines were actually run and marked on the ground if they were so marked. If that is what the defendant meant by its offer to prove where the “ lines were loc'ated on the ground ” the evidence was competent.

The judgment is reversed and a venire facias de novo awarded.