Barnes v. Philadelphia, Newtown & New York Railroad , 1905 Pa. Super. LEXIS 7 ( 1905 )

Opinion by

Smith, J.,

John Young, in 1869, conveyed three adjoining lots on the west side of Second street, in the city of Philadelphia, with a total frontage of' eighty feet, the title to which subsequently became vested in the plaintiff. In the conveyances, the lots are described as extending west of Second street “121 feet 9 inches to Philip street, 30 feet wide,” and bounded “ westward by Philip street.” The land thus described as Philip street belonged to Young; but it was not then nor has it since been opened or plotted as a street or entered as such on the city plan. The plaintiff contends that by reason of this, and by the effect of a statute to be referred to later, the land has lost its character as a street, and that the portion involved in this action has reverted to him as abutting owner.

Upon a conveyance of land bounded by a street, unless otherwise provided, the grantee takes to the middle of the street, if the grantor owns thus far, subject to the public easement; and when the street is vacated, this portion of it reverts to the grantee: Paul v. Carver, 24 Pa. 207; Bliem v. Daubenspreck, 169 Pa. 282. In the case before us, therefore, the plaintiff’s right depends, first, on whether the land described as Philip street was a public street; and second, whether, if a street, it has been vacated.

The designation of a street as a boundary, in a conveyance of land, whether opened or not, if it be on land of the grantor, is an implied covenant by the grantor that it shall be open for the use of the grantee as a public way, and as a means of access to the land conveyed: Ferguson’s Appeal, 117 Pa. 426; Dobson v. Hohenadel, 148 Pa. 367; and it is also a dedication of the street to a public use: Quicksall v. Phila., 177 Pa. 301. By force of a covenant implied from its designation as a street bounding the lots conveyed, that part of the grantor’s land described as Philip street became potentially a public street, though not opened or plotted as such. The fee remained in the grantor, subject to the easement thus created in favor of the grantees and the public. If appropriated by the proper authorities as a public highway, the grantor would be entitled, as damages, to the value of his interest in it: Gamble v. Philadelphia, 162 Pa. 413; Whitaker v. Phoenixville Boro., 141 Pa. 327; and if vacated as a street it would revert to the abutting owners. There is nothing to show that it has ever been vacated, and, so far as appears from the evidence, its status as- a street, given by its designation as such in the conveyances, remains unchanged. The plaintiff, therefore, has no other right in relation to it than arises from the implied covenant.

The appellant, however, further contends that the street is, in law, vacated through the operation of 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 to or used by the public for twenty-one years next after the laying out of the same, shall be and have no force and effect, and shall not be opened without the consent of the owner or owners of the land on which the same has been or shall be laid out.”

We do not regard this act as applicable to the case in hand. It does not appear that either the lots sold or the land described as Philip street had been laid out in any town plot or plan of lots, within the terms of the statute. So far as shown, no other lots or streets than these were laid out, and even Philip street appears not to have been laid out, but was named merely as a boundary, for a distance of eighty feet, of the lots sold. This can in no sense be deemed a town plot or plan of lots, as such a plot is generally understood, or within the purview of the act of 1889. But even to regard the lots sold and the street named as forming such a plot would not sustain the plaintiff’s contention. The statute is designed for the benefit of the landowner who has laid out a town plot or plan of lots; its purpose being to relieve his land from the servitude arising from a dedication to public use that has remained unaccepted for twenty-one years : Quicksall v. Phila., 177 Pa. 301; and not to enable the owners of abutting lots to seize upon his interest in the unopened streets. It does not, ipso facto, vacate the streets thus dedicated, nor require the owner to resume his original estate in them, with the consequences arising from conveyances like those in the present case, but leaves this optional with him by providing that they shall not be opened without his consent. He may prefer that they should be opened, from advantages to accrue to other property, and cannot be denied the right to hold them subject to public use, should he choose to do so. To deprive him of this right, by construing the statute as automatically operating to vacate the streets, is in effect taldng his property without due process of law, and vesting it in abutting owners; moreover, the title of the statute, “ An act relating to unused streets, lanes and alleys,” gives no notice, by even the remotest implication, of such a purpose. Hence the constitution denies such an effect to the act. In fact and in law, Philip street still remains as created by the conveyances that gave it legal existence by describing it as the western boundary of the lots conveyed.

Judgment affirmed.