In re Opening of Brooklyn Street

Opinion,

Me. Justice Geeen :

The first four assignments of error are disposed of by the decision of this court in the case of Magnolia Avenue, 117 Pa. 56, and they are therefore sustained.

The question raised by the remaining assignments is one of dedication. Does one who, in making a deed of his land, refers as a boundary to a street laid out but not opened, thereby dedicate so much of his land as lies within the street limits to the public, and thus deprive himself of a right to compensation when his land is actually taken ?

If the question were one between a grantor and grantee, and involved a right of way over the street upon which the land conveyed bordered, of course the grantor must make good his covenant that there was a street corresponding with the one described in the deed. But that is the law, not upon the theory of a dedication to public use, but upon the implied contract between the parties. As between them, every consideration requires that if the ground conveyed is described as bordering upon a street, the street should be there in compliance with the description. If it be a public street laid out by municipal authority, the grantee is presumed to know that fact, and takes his title subject to the municipal control as to the time and circumstances of opening it for use. If it be a street laid out by the grantor himself over land which he sells in lots, there is necessarily an implied covenant that he will open it at least for the use of his grantees. But when a municipal government lays out streets upon the land of a private citizen, it is not the act of the owner in any sense, and hence there is no necessity for an implication of a covenant against the owner to give his land to the public without compensation, nor even to dedicate it to public use. Why, then, shall these implications be made in a case where the street is laid out by municipal action and the owner does nothing whatever as to the public, and nothing as to his private grantee except simply to refer, as matter of description in his grant, to a street laid out, but not opened, by public authority. In making such a grant the public is not in privity with him; his dealing is not with them but with a private citizen. Whatever may be his obligation to that citizen because of the private contract between them, no analogy requires a similar deduction to be made between the owner and the public. Of course an owner may dedicate his ground to public use as streets by dividing his land into lots and streets upon a plan made for the purpose and selling the lots in accordance therewith. But in such case the acts done are his own acts, and because they are his they justify the inference of dedication.

There are but few reported cases in which the direct question has arisen. The case of Bellinger v. The Union Burial-ground Society, 10 Pa. 135, is one of the earliest. Its purport is thus expressed in the syllabus: A sale of a lot by a plan on which a public street is laid out as one of the boundaries, and a conveyance describing the lot as a lot on W street, as the same shall be opened, and bounded on the south by W street, does not create a covenant on which the grantors are liable where the street was subsequently vacated by legislative authority and the grantors entered upon and occupied the land over which it was laid out. Coulter, J., in discussing the legal effect of the descriptive words of the grant, said: “ But did the words used in the deed amount to a covenant or can a covenant be squeezed out of them ? Every lot granted must have a boundary to fix its locality, and what boundary so fit and proper as a street laid out, marked, and declared a public highway according to law ? It was not then actually open, but to be opened when public convenience required. This both parties knew, for it was the law, and all people are supposed to know the law on the subject about which they contract......It would be a novel legal doctrine to broach over the broad lands of the state, that if one sold land bounded by a public highway, he might be sued for a covenant broken, if the public in any time to come should vacate the highway. The parties described the subject of the contract under an existing state of things as known and accessible to everybody. But this does not amount to a covenant that this state of things shall be perpetual.” The value of this decision consists in the distinction it makes between the effect of words of description in a private grant, where the adjoining street is laid out by public authority and when by the act of the owner.

In the case of Forbes Street, 70 Pa. 125, commissioners were appointed, under an act of 1836, to set off and survey a tract adjoining Pittsburgh as a city district, make a plan of it, locate and mark streets, etc., and return the plan to the Quarter Sessions, which being approved, the streets to be public highways. The district was surveyed, the plan made and returned, and the streets, Forbes street being one, were located. After the plan, Aiken sold a lot describing it as bounded on Forbes street. This was not a dedication by him of his land covered by Forbes street. This court, Read, J., having said that the act made two classes of streets, one, such as were laid out by the commissioners, and the other, such as had been laid out and appropriated by private persons for public use, or for the use of owners of lots fronting thereon, concluded: “ So the question of dedication in all the authorities in this state really applies only to streets of the second class, and has no application to streets of the first class, which in one of the cases creates the absurdity of dedicating by inference a house, as well as the ground on which it stands, to the public.”

The case of Borough of Easton v. Rinek, 19 W. N. 561, seems to be quite in point with the present. On the opening of Eighth street in the borough of Easton, the heirs of Jacob Rinek applied for an assessment of damages by reason of opening the street and taking their land covered by the street. The case is not well reported, but an examination of the paper books shows that on the trial, after proof of the value of the land taken, the borough offered to prove that Jacob Rinek, the deceased ancestor, had sold lots bordering on Eighth street, the description of one of them being as follows: “ beginning at the southeast corner of Ferry and Eighth streets, as laid out in the new plan of said town; thence east sixty feet, etc., . . . . to said Eighth street; then north along the east line of said Eighth street,” etc., etc. The records of the deeds thus made, and also of the public maps of the borough, showing that' Eighth street was a public street of the borough prior to said deeds, were offered to prove a dedication of the ground occupied by the street to public use, but they were rejected by the court below, and this was the error assigned here. In a Per Curiam opinion we said: “ No question arises between the vendor and vendee of- land fronting on a street. The sole claim is by tbe owner of the land against the municipality for damages which he sustained by its taking of his land for a street. No damages were sustained until the street was opened.” The judgment of the court below was affirmed. [Now reported, 116 Pa. 1: — Rep.]

The only case which seems to be in hostility with the foregoing, is In re Opening of Pearl Street, 111 Pa. 565, but an examination of that case as it appears in the report and in the paper books, discloses that it is entirely different from the present and that it does not raise the question arising upon this record. It was not an application for damages by the original owner upon the opening of the street, but of certain grantees of the original owners and of others who claimed under them. The Baring estate owned the land, and in 1858 the then owners, two English ladies, executed a formal act of dedication to public use of a large number of streets extending through the whole of a tract of thirty acres, together with a release of damages to the city for the opening of the streets. Accompanying this written and sealed dedication was a plan of the whole property, with the streets all laid out upon it, and all named, except Pearl street, which had not then been named, but which was nevertheless marked and laid out as a thirty feet street on the plan. This plan was expressly referred to in the act of dedication and made a part of it, and the fact of dedication was just as complete and perfect as to it, as it was in regard to all the other numbered and named streets on the plan. Moreover, in the deed to Richard Smithurst from the Baring trustees, this street is expressly mentioned as a street included in the grant, and of course it could only be regarded as an already dedicated street, for which no damages could ever be claimed by anybody. The same description appeared in the deed to Steen, and it was his trustees who claimed damages in the case of Pearl street. There were other claimants, but none of them could have any greater rights than the Barings, Smithurst, or Steen, all of whom preceded them in the title and were alike excluded from damages by the written dedication. The paper books show that counsel against the claimants argued the case upon this very ground. Viewed in the light of these facts the language of this court in the Per Curiam opinion in the case of Pearl street was entirely apposite and appropriate, but it decides nothing as to the present contention, which did not then arise. It is not necessary to review the other authorities cited for the appellees. They are not in point and we are clearly of opinion that upon the exact facts of the present case the doctrine of dedication by implication does not apply as against the claim of the appellants. The assignments of error are all sustained.

Decree reversed, and record remitted for further proceedings at the cost'of the defendants in error.