Kopf v. Utter , 1882 Pa. LEXIS 214 ( 1882 )

Mr. Justice Gordon

delivered the opinion of the court, October 2d 1882.

The question in this case was one involving the location of the west line of East Street, in the borough of Warren, as made by the commissioners appointed to lay out said borough, by the act of the 18th of April 1795, and it was one that could only be determined by the jury.

In 1867 the borough authorities, by their surveyor, endeavered to ascertain and establish this line. This they had an undoubted right to do, and prima facie tliejr survey was the right one, and correctly indicated the boundaries of the street.

’ But complaint is made of the court below oh account of its answer to the plaintiff’s first point, which was put as follows : “ That if East street was opened some forty years ago, either by the consent or acquiescence of the owners on either side, to the width of sixty feet; that both sides were fenced, in whole or in part, and buildings erected and other improvements made by the owners and occupants on both sides of the lines, as designated, for twenty-one years or more, and the street, thus located, has been worked, graded, and ditched, and sidewalks made, by the authority of the burgess and councils, for many years — they have no power to change the location of the street, whether it was or was not opened in its proper place, acccording to the proper plot of the lots and streets of the borough.”

The court affirmed this point, with the following qualification : “ If you further find that the street was opened and the lines of the same fixed by the borough authorities.”

Now, in the first place, it must be observed that the point is defective in this, that it assumes what is not in the case. There could be neither a consent nor acquiescence, that would at all affect the case, by the adjacent land owners of forty years ago to the opening of a street laid out by the authority of the state some forty-five years before that time, and when the commonwealth was the sole proprietor of the property in controversy. If, indeed, it is intended to assert by this point that the owners of the land, on either or both sides of the street, gained anything by the occupancy of any part of it for the period of forty years, it was a mistake, for the public right could not be barred by the mere lapse of time. As was said by Mr. Chief Justice Gibson, in the case of Barter v. The Commonwealth, 3 P. & W. 253, the title of a municipal corporation do the soil of its streets, for those purposes that concern the public enjoyment and convenience, is paramount and exclusive; and no private occupancy, for whatever time, whether adverse or permissive, can vest a title inconsistent with it. A recognition of the same doctrine may be found in the cases of The Commonwealth v. Alberger, 1 Wh. 469; Commonwealth v. McDonald, 16 S. & R. 395; and the Penny Pot Landing Case, 4 Har. 79,

How, then, can fault consistently be found with the answer of the learned judge of the court below ? If the public right was not compromised by the adoption, by the borough council, of a line other than the original line of the street, as was the case in The Commonwealth v. Miltenberger, 7 Watts 450, that right could not be defeated by the fact that Kopf, and those under whom he claimed, had for more than twenty-one years been allowed to fence in some three feet of the public street. Neither can we understand how the repairing of this street from time to time, or the ordering of sidewalks, can be taken as .a recognition, by the borough officers, of the line claimed by the plaintiff, and that in the face of the fact that the council had never authorized any alteration of the line of 1795 ; on the other hand, certainly intending by the survey of 1867, to discover and adopt it.

The road master would naturally repair the street as he found it, without regard to the original lines, and the lot owner would grade and pave his sidewalks from and to what he considered his line; hence, in neither case would the borough council be consulted. In fact, as we have already said, the only question properly in this case was that involving the original lines of East Street; nevertheless, the court instructed the jury, that if the borough authorities did any thing.to induce the plaintiff, or those under whom he held, to build up to the line claimed by him, the borough, after twenty-one years, would be estopped from afterwards disputing it.

In this instruction the plaintiff certainly got all, and perhaps, more than he was entitled to. His ease was well and fairly submitted to the jury, and that he did not get the verdict he desired must be attributed to a failure of his proofs, rather than to the want of proper instruction from the court.

The judgment is affirmed.