Osterheldt v. Philadelphia , 195 Pa. 355 ( 1900 )

Opinion by

Mb. Justice Mestbezat,

The learned referee has found the facts of this case very fully in his first report. As the appellant has failed to print the testimony, and it is, therefore, not before us, the assignments, alleging error in the referee’s findings of fact, must be overruled and dismissed. The view we take of the case requires us to consider but one of the assignments of error, to wit: The court erred in dismissing the defendant’s first exception, which was as follows : The report of the referee is contrary to law.

We are unable to distinguish any material difference between the controlling facts of this case as found by the referee and those in the case of Quicksall et al. v. Philadelphia, 177 Pa. 301. I£ there is any difference, the facts of tins case are stronger in favor of the city than those in the case cited. Fairmount avenue was open and used by the public for three or four years after its dedication, while the streets in the Quicksall case were laid out but not opened or used by the public. The learned court below thought the facts of the cases were similar and that the reasoning of the referee in his first report was correct, but held the act of May 9, 1889, was applicable to the facts of this case, and relieved the land within the streets from the servitude imposed upon it by the deed from Richard Peters to the plaintiffs’ decedent. In holding this statute to apply to the facts of this case, we think there was error.

The Act of May 9, 1889, P. L. 173, 2 Purd. Dig. 1875, pi. 8, is as follows: “ 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.” The ordinance to open Fairmount avenue is dated April 5, 1884. The city council, by this ordinance, directed that the department of surveys be authorized to revise plan No. 105, so as to place thereon Fairmount avenue from Mt. Vernon street to Lancaster avenue of the width of fifty feet. The avenue was laid out and opened the year the ordinance was passed. If the plaintiffs’ decedent was injured or his rights invaded by the action of the city in appropriating his land for the use of the avenue, it was at this time, and his right of action, if he had any, accrued to him then. If under the law at that time, he was not entitled to recover, the subsequent statute, enacted in 1889, would not enable him to do so. There is nothing in this statute that would justify us in giving it a retroactive construction, so as to apply to streets opened and used prior to its passage.

Applying to the facts of this case the principles enunciated in the well considered opinion of Mr. Justice Fell in Quicksall et al. v. Philadelphia, supra, we are of opinion that the plaintiffs had no cause of action against the city. The effect of the deed from Peters to Osterheldt in 1849 was to dedicate to public use the strip of land of the grantor now included within the lines of Fairmount avenue and to stamp upon it the character of a public street. It gave the right to use this street not only to purchasers of lots laid out by Peters, but to all other persons who might desire to use the street. The dedication was irrevocable by either the grantor or those claiming title under him. Therefore, the deed of Peters to Osterheldt in 1849 operated as a relinquishment of all claims for damages for the use of the land within the line of Fairmount avenue for street purposes and the act of 1889, having no application, the plaintiffs here have no basis upon which to sustain a claim for damages.

The first assignment of error is sustained, the judgment of the court below is reversed, and judgment is directed to be entered on the first report of the referee in favor of the defendant, with costs.