Black v. Pittsburg & Butler Street Railway Co.

Per Curiam,

It is settled by numerous decisions “ that a 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 it'to public use.” One of the latest decisions of the Supreme Court, in which the rule as above stated has been enunciated, is Garvey v. Refractories Company, 213 Pa. 177. The question involved in this appeal is whether this right of the grantee and those who claim under him, arising out of the implied covenant of his deed running with the land to have the street kept open as a way appurtenant to his land, is extinguished by the municipality’s acceptance of the dedication or by such acceptance followed by vacation of the street by due process of law. This .question was considered by this court in Wickham v. Twaddell, 25 Pa. Superior Ct. 188, and again in Carroll v. Asbury, 28 Pa. Superior Ct. 354. In the former case there was no vacation, but the facts required a determination of the nature of the right acquired by the purchaser under his deed. Therefore, we cannot agree with appellant’s counsel that what was said aá to the effect of a vacation was obiter dictum. But, be that as it may, the precise question arose in Carroll v. Asbury, and was decided in the negative upon full consideration of the principles involved and of the pertinent authorities. The learned judge below was clearly right in following that decision and, therefore, in holding that the plaintiffs, whose lots abut on the alley, were entitled to have it kept open as a way appurtenant to their lands. The plaintiffs’ right being clear, it is not a case for balancing the loss to the defendant or the public which may result from the defendant being restrained from building on that portion of the alley upon which its land abuts against the injury which would result to the plaintiffs from the deprivation of their right. For further discussion of the question and for a citation of pertinent authorities, we refer to the opinions of our Brother Porter in the cases above cited, and to the opinion of the learned judge below in the present case.

The assignments of error are overruled and the decree is affirmed, at the costs of the appellant.