Quicksall v. City of Philadelphia , 177 Pa. 301 ( 1896 )

Opinion by

Me. Justice Fell,

The right contested is that of the plaintiffs to recover damages forthe opening by the city of Rúan and Leiper streets. By reason of their purchase of lots bounded by the streets the plaintiffs claim ownership of the land to the middle thereof. For many years stone has been quarried by them and their grantors from these lots, and from the beds of the streets, and at the time of the commencement of these proceedings the quarry had been worked to a depth varying from f orty to eighty feet. The streets as filled in by the city are not as high as the original surface of the ground.

In 1847 the land in question was part of a tract of five and a half acres owned by Peter and Rudolph Bucldus. In that year they made a plan dividing the land into lots and streets. This plan was recorded November 6,1847, and in January, 1848, the lots were sold at public sale. They were sold and. conveyed according to the plan and described as bounded by Rúan and Leiper streets, and these streets were mentioned in the deeds as having been “ laid down on said plan for the accommodation of this and other lots.” It is not disputed that the sale and conveyance of the lots passed the fee to the middle of the streets on which they fronted. Indeed it could not be under the decisions in Paul v. Carver, 26 Pa. 223; Cox v. Freedley, 33 Pa. 124; Baker v. Chester Gas Co., 73 Pa. 116; Falls v. Reis, 74 Pa. 439; Firmstone v. Spaeter, 150 Pa. 616. It is claimed however by the city that these streets were dedicated to public use in 1847, and that consequently no damages can be recovered for their opening.

The 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 them to public use. The right passing to the purchaser is not the mere right that he may use the street, but that all persons may use it: Dovaston v. Payne, 2 Sm. L. C. 154; McCall v. Davis, 56 Pa. 431; Davis v. Sabita, 63 Pa. 90; Transue v. Sell, 105 Pa. 604; In re Opening of Pearl Street, 111 Pa. 565. In the case last cited it was said that when one “sells and conveys lots according to a plan which shows them to be on streets he must be held to have stamped upon them the character of public streets. Not only can the purchaser of lots abutting thereon assert this character, but all others in the general plan may assert the same. The proprietor is in no condition to afterwards revoke this dedication.” Such a dedication was said in Heckerman v. Hummel, 19 Pa. 64, to be a contract with the public. The distinction between the sale of lots according to a plan made by the owner upon which streets are laid out and the mere reference in aid of description to streets projected by the municipality is manifest. In the former case the inference of dedication arises, in the latter it does not.

The dedication by the plaintiffs’ grantors in 1848 operated as a relinquishment of all claims for damages for the use of the land within the lines of the streets for street purposes, and no claim for damages can be sustained unless by reason of the act of May 9, 1889, P. L. 173. The language of the act is: “ 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 tbe 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.” The purpose of the act is to relieve land upon which streets have been laid out by the owner, but not opened or used for twenty-one years, from the servitude imposed. To what extent it may affect the rights of those who by purchase of lots within the tract have acquired the right of the use of all the streets marked on the plan we need not now inquire. We have before us only the question of the right of the municipality to open the streets without compensation by reason of the dedication in 1848. As against this right the act establishes a limitation of time where none before existed. The streets were laid out forty-four years before the commencement of these proceedings. They have not been opened to, or used by, the public. During the whole of this time the beds of the streets have been in the possession of the abutting owners, and used by them for the purpose of quarrying stone. No possession or use was claimed by others. The case, we think, comes within the meaning of the act of 1889, and it is now too late for the city to assert the right founded upon the dedication in 1848. It follows that the cases should have been submitted to the jury.

The judgment in each case is reversed with a venire facias de novo. '