In re Street

10 Pa. Super. 332, 1899 Pa. Super. LEXIS 286

• Court: Superior Court of Pennsylvania
• Decided: May 18, 1899
• Status: Published

Opinion

Opinion by

William W. Porter,

That which is now called Cresson street between Shur’s lane and Cedar street was put on the plan of the city of Philadelphia by the approval of the board of surveyors and confirmation of the court of quarter sessions, in 1859. The street was marked seventy-eight feet wide and called “railroad,” on the plan. Prior to that time the Philadelphia, Germantown & Norristown Railroad had occupied about forty-eight feet of the bed of the street plotted as above stated. On April 19,1879, the width of the street was reduced on the plan of the city to thirty-six feet and on June 3, 1895, to thirty feet. The report of the viewers finds, inter alia, that “ the said Cresson street between Shur’s lane and Cedar street was opened by user and not by ordinance of councils or by the court of quarter sessions and was never so used of a greater width than thirty feet southwestward from the building line on the northeast side of Cresson street between Cedar street and Shur’s lane. The property on the southwest side of Cresson street between Cedar street and Shur’s lane for a width of forty-eight feet is and has been occupied for many years ” by the railroad; that the building line on the northeast side of Cresson street was established by the plan of 1859; that no alteration was made in that line by either the revision of April 19,1879, or June 3,1895, but that the reductions in width were both made on the railroad side.

The appellant being an owner of property on the northeast side of Cresson street claims that he has been damaged by the reduction in the plotted width of the street, and the jury of view have given him damages. The court below has set the verdict aside and has sustained certain specified exceptions. In this there was no error. By the findings of the jury of view it appears that there never has been a physical narrowing of Cresson street. The opening by user was only to a width of thirty feet. The last reduction of plotted width leaves the opening by user undiminished. That which the city did was to revise the street line on the public plans. For this no action lies. The placing of a street upon the city plan is so far an interference with the rights of property that any buildings thereafter erected within the lines of the proposed street must be removed by the owner and without the payment of damages when the street is opened, but no right of action accrues to the owner of the property until the actual opening of the street: Plan 166, 148 Pa. 414. In the present case the appellant claims to have improved his property on the faith of the opened street. If it was upon the faith of the visible physical opening, this was only to the extent of thirty feet in width, as the report of the jury finds. If it was upon the faith of the plotted street, the public records which furnished the information respecting the width of seventy-eight feet, furnished also knowledge of the fact that forty-eight feet of the width was land of the railroad company or covered by its right of way. This was notice to the appellant that forty-eight feet of the original plotted width of the street was already subjected to a public servitude which would or might conflict with any attempted physical opening beyond the thirty feet. Furthermore the public records, if examined by the claimant before he bought or commenced to improve, would have apprised him of the fact that the street had never been opened by legal procedure. He who improves his property with reference to a street plotted but unopened, does so at the risk of a change being made of the location or width of the street as plotted or of even a removal of it from the plan. The plotting of the street is notice of a present intention; not a guaranty of future performance. Such plotting does not acquire for the public any right of use for travel: Commonwealth v. The Railroad, 135 Pa. 256, 271.

The city of Philadelphia has taken an appeal to the court of common pleas from the award of the jury of view. It is argued that thereby the city lost her right to file exceptions. The matter is ruled by Bowers v. Braddock, 172 Pa. 596. “The filing of exceptions to the report of viewers has nothing to do with the right of appeal. . . . The hearing of the exceptions can go on and be completed before the case is actually tried and if the exceptions are decided favorably to tbe appellant so as to defeat the proceeding, no trial will be necessary. If otherwise the trial can then proceed.”

The judgment of the court below is affirmed.