McElhone v. McManes , 118 Pa. 600 ( 1888 )

Opinion,

Mr. Justice Clark:

It is conceded that Thomas McElhone, the plaintiff, is the owner of the fee of the locus in quo; that the boundaries of his deed embrace the soil of the alley in dispute, and' that James McManes, the defendant, against the protest of the plaintiff, placed his sewer-pipe in the alley five or six feet below the surface of the ground, in order to connect his six new houses on Thirty-sixth street with the public sewer on Haverford. It is clearly established, also, that the alley was laid out some thirty years ago by William Peterson, who was at the time the owner of the entire block of lots on Thirty-sixth street between Haverford and Rockland for the use of all the lots on that block; and although there is no reference to it in the title papers, it is admitted that the right of way, for some purpose, exists, and that the plaintiff bought with full knowledge of the fact. The dedication was by parol, but the continuous and notorious user of the premises in accordance therewith for thirty years, or more, establishes the common right. There is therefore no doubtful question of title to the right of way which must first be settled at law in order that equity may adequately protect the possessor in the enjoyment.

But there is nothing to indicate any particular purpose for which the alley was originally designed, or that Peterson dedicated it to the common public use, under any limitations, restrictions or conditions whatsoever. We must assume, therefore, that the alley was designed for the use of the lots in common, for such purposes as an alley may ordinarily be applied. Nor is any inference of the existence of any restriction to be drawn from the manner in which the alley was used, for the use of it has been in accordance with the general purpose stated. At first, ashes were thrown upon it to keep it dry, and people passed and repassed along it at their pleasure. Ditches were dug upon it from time to timé, for drainage of the waste and surface water accumulated on the lots. It seems to have been used as any other alley similarly situated. Finally it was paved with brick and continued in this condition until the defendant put in his sewer. If it was not restricted in its dedication, and has been used for the general purpose of an alley, the mere fact that it has as yet been used only for a passage way, and for drainage of the surface water, would not of necessity restrict it to these purposes in the future. The use to which it may be applied would depend upon the growth of the city, the improvement of the adjacent property, and the municipal regulations affecting the public health. Upon what evidence can it be said that the property holders adjacent to this alley were simply entitled to a passage way and to the drainage of the surface water? If it might be used.for the drainage of the surface water, why not for the drainage of any other accumulations which might come upon the premises in the ordinary and natural user of the property.

The occupancy of the alley for drainage purposes by putting in connections with the city sewer would seem to be a most reasonable and proper use of the alley, under the terms of the dedication, and to be in conformity also with the general purposes to which it has hitherto been applied.

We are of opinion that the decree in this case should not be disturbed.

The decree of Common Pleas is affirmed, and the appeal dismissed at the cost of the appellant.