Commonwealth v. Llewellyn , 1900 Pa. Super. LEXIS 36 ( 1900 )

Opinion by

W. D. Portee, J.,

The defendants were indicted for maintaining a public nuisance, by the erection of buildings upon the line of an alleged public alley, in the borough of West Pittston. The ruling of the court which is the subject of the first assignment of error was an absolute denial of the right of the commonwealth to stand aside jurors in empaneling the jury for the trial of this cause. The right of the commonwealth to stand aside a juror has ceased to be an open question in Pennsylvania; and this right rests upon the same foundation whether the trial is for a misdemeanor or a capital felony. As to both misdemeanors and felonies the origin of the practice is to be found in the construction given by the courts to statute 33 of Edward I., enacted in 1305; and from that time until the present the custom has been sustained by an unbroken line of decisions. Until the constitution is so changed as to invest the judiciary with legislative powers, this long established rule is not to be overthrown by the courts : Haines v. Com., 100 Pa. 317; Smith v. Com., 100 Pa. 324; Com. v. O’Brien, 140 Pa. 555. The contention of the appellee is that the ruling of the court below was allowable because of the expression used by the late Chief Justice Stekkett, who spoke for the court, in Haines v. Com., “ the right claimed by the commonwealth should always be exercised under the supervision of the court,” is not well founded. The language of the chief justice referred to the manner in which the right was to be exercised and did not recognize a power in the court to absolutely deny the right. In the trial of a misdemeanor, in which the commonwealth and the defendant have an equal number of challenges and are required by law to exercise their right of challenge alternately, it might well be held that, when the commonwealth passed a juror to the defendant, and thus put the latter to his election to accept or challenge, upon the acceptance of the juror by the defendant the commonwealth had waived its right to stand aside. To hold that the court had power to say that the commonwealth might stand aside jurors upon the trial of A, and, in the next hour, upon the trial of B, might deny the existence of the right, is another and an entirely different matter, and an exercise of an arbitrary power not authorized by law. The first assignment of error is sustained.

The second and third assignments of error are without merit, and the requests .for charge upon which those assignments are based might very properly have been flatly refused. The deeds referred to in those points called for the alley in question as a boundary, but they were not conclusive of the fact of dedication, nor acceptance by the public. As between the grantors and grantees they simply vested in the grantees a right of passage over so much of the land of the grantor as was occupied by the alley, but the deeds alone did not constitute the alley a public highway. If the alley in question had been simply located by the public authorities over the lands of the grantor and had not yet been opened and used by the public, these deeds did not constitute a dedication to public use. If the alley was one which had been laid out by the grantor in a plan of subdivision of his property, and he had sold lots in accordance with that plan, that would amount to a dedication to public use. Even in the latter case, however, there would have to be evidence of an acceptance of the dedication by the public before an indictment of this character could be sustained: In re Opening of Brooklyn Street, 118 Pa. 640; Whitaker v. Phœnixville, 141 Pa. 327; Gamble v. Philadelphia, 162 Pa. 413 ; Quicksall v. Philadelphia, 177 Pa. 301. In the evidence as printed there is nothing to suggest that the former owner of the premises, R. J. Wisner, had ever caused this tract to be plotted, or executed deeds for lots fronting upon it during his lifetime. The only evidence from which a dedication could have been presumed was the parol testimony as to what was actually done upon the ground.

The court gave binding instruction to the jury to find a verdict of not guilty, which instruction was based upon the ground that there was no evidence of the acceptance by the borough of this street, and that the offense complained of was not upon the open and traveled way, which instruction is the ground of complaint in the fourth specification of error. We are convinced that this specification of error must be sustained. That the public, may acquire the right to a highway by adverse user, as such, without the intervention of the municipal authorities, is well settled. When the right is dependent upon adverse user alone, it does not become complete until the expiration of twenty-one years. When a dedication to public use, and the opening of a street to public travel by the owner, is followed by its actual use by the public as a highway, the right in the public may become complete and absolute Within a much shorter period and without any affirmative act of acceptance by municipal authority: Commonwealth v. Cole, 26 Pa. 187; Root v. Commonwealth, 98 Pa. 170; Commonwealth v. Railroad Company, 135 Pa. 256 ; Commonwealth v. Moorehead, 118 Pa. 344. In this case the evidence would have warranted the jury in finding that the defendants had encroached upon an alley which had been used as a public highway for at least twenty-five or thirty years, that the predecessor in title of the defendants had for that time recognized the title of the public and had located his fence and buildings to correspond therewith. There was the further evidence of the deeds through which the defendants’ title came recognizing the alley and the location thereof. The suggestion that the public only acquire title to the right of way as of the width of the beaten track where wagons have worn the grass away is without force. The extent of the public right is to be determined from all the evidence in the case, and if the adjoining owners had fenced and defined the alley that fact must be considered by the jury. If those of the public who desired to travel at the sides of the alley did so, that was as much a use by the public as was the passing of those who traveled where the road was smoothest. If those parts of a public street where grass is permitted to grow cease to be public highways, there are many streets in boroughs and the suburbs of cities which would soon become mere cow paths. When the evidence clearly indicates the owner’s desire to surrender control and donate a right of way to the exclusive use of the public, and the public so accept and use it, it is an acceptance of the right of way as of the width dedicated and actually opened for public travel. Where the right to a public highway is acquired by adverse user, an important element in determining the width thereof is the recognition of the limits of the way by the owners whose lands front thereon, as indicated by the monuments and fences which they themselves place upon the ground, and the lines which they fix for the same in making conveyances of their property. The commonwealth certainly presented sufficient evidence to require the submisson of this case to the jury, and the fourth assignment of error is sustained.

Judgment reversed and venire facias de novo awarded.