O'Neil v. McKeesport , 201 Pa. 386 ( 1902 )

Opinion by

Mb. Justice Mitchell,

This is a controversy over a title at law. The claims of both parties start with the ownership in James O’Neil in 1851. It is admitted that in 1863 O’Neil opened the alley now in contention over a part of his land, and that it has been in use by the public ever since. Here the dispute begins. The plaintiffs claim that the opening was temporary under an agreement with the owners of adjoining land, and was to terminate when Sand alley should be opened through O’Neil’s land so as to give the adjoining owners an outlet to Locust street, and that the use by the public has been permissive only. The plaintiffs as heirs of James O’Neil have now opened Sand alley to Locust street and have endeavored to fence in the alley in dispute, the fee of which is in them, and the easement in which they claim has legally terminated. The city of McKeesport on the other hand claims that when the alley was opened by O’Neil it was irrevocably dedicated to public use. This is the substance of the whole controversy and it is without any element of equitable jurisdiction: Washburn’s App., 105 Pa. 480. An action of ejectment would settle the question, or if plaintiffs are unwilling to admit themselves out of possession, then an action of trespass for tearing down the fence would be equally effective or an action of assumpsit for the balance of the purchase money retained by the school district.

Decree reversed and bill directed to be dismissed with costs, but without prejudice to the rights of the parties at law.