Philadelphia v. Peters

62 Pa. Super. 90, 1916 Pa. Super. LEXIS 361

• Court: Superior Court of Pennsylvania
• Decided: March 1, 1916
• Docket: Appeal, No. 86
• Status: Published

Opinion

Opinion by

Teexleb, J.,

This is a proceeding on a municipal lien filed for paving a cartway of Dyre street, Philadelphia. The owner of the property against which the lien is filed, claims that the lien is not valid because the street, upon which the pavement was laid is not a public highway, but is private property. The same question arose in the case of Philadelphia v. Peters, 18 Pa. Superior Ct. 388. It appeared in that case as it does in this that Emanuel Peters, in conveying the premises of which Dyre street formed part, excepted and réserved the soil of the moiety of Dyre street, plotted upon the municipal plan, and further recited that the grantor had “by a certain deed poll bearing even date herewith, but duly executed and acknowledged immediately before these presents, and intended to be forthwith recorded, dedicated and appropriated the same to public use as a highway forever.” It was held in that case that this recital in the deed amounted to a dedication and that the city having accepted the street and. recognized it as a public highway, it became such, and was no longer private property. The defendant, however, in this case claims that he is not bound by that decision, and that the dedication referred to in the above case does not bind him. Some time prior to the deed, containing the recital aboye quoted, Peters, the owner, had given a purchase-money mortgage. This mortgage covered among other property, the land covered by the street. Defendant purchased the mortgage and sold the premises described therein including Dyre street. He argues that the mortgage being prior to the dedication, was unaffected by it; that the owner could by no lawful act, impair his security. We do not think it necessary, however, to base the validity of the lien upon the dedication of the street by Peters. If we examine the chronology of events we find that as far back as 1847 Dyre street was on the plans of the Borough of Frankford as a forty-foot street. In 1850 the mortgage above referred to was given. In 1855 Peter dedicated it to public use. The street appears on several plans of the proper department of the City of Philadelphia, until 1895, when it appears as a fifty-foot street. In 1893 the street had been graded by the city. In 1895 a sewer was laid, followed by water pipes in 1896, and in 1897 curbs and sidewalks were constructed, and the roadway was paved. This present claim arises out of the latter improvement. The plotting of the street and these successive municipal improvements following were unequivocal acts which evidenced the purpose of the city to take the land embraced in the street for a public highway. The passage of an ordinance is not the only way by which a projected street may be opened. The intention to take the land for public purposes being manifested by an appropriation of the land and the improvement of it for public purposes, the right of action for damages accrues to the landowner. See Volkmar Street, 124 Pa. 320; Whitaker v. Phœnixville Boro., 141 Pa. 327. This being so, we are not concerned in this proceeding as to whether the damages for the opening were paid. If the rights of the mortgagee were infringed by the taking of the land for the street, or his security impaired, his time for action began when the city took possession of the land, covered by his mortgage. He cannot stand by and allow the city to improve the street and then urge as a defense to the city lien that there is no street. When land is taken for public use, it is not the record title that is acquired, nor is it any person’s title, but the land itself, irrespective of record or ownership. In Pennsylvania a mortgage is both in law and in equity only a security for the payment of money and passes no title to the land. The mortgagor is the owner of the land: Jackson v. Pittsburgh, 36 Pa. Superior Ct. 274. The purchaser at sheriff’s sale stands in no better position than the mortgagee. When he purchased the mortgage, the street was already opened and used by the public; it was graded and paved. When the city has entered upon a street and it becomes open and notoriously a public highway, the fact that there may have been liens upon the land which liens may have been affected by the taking of the land by the city, will not give the owners of such liens or subsequent purchasers under process issued thereon, a right to escape liability for assessments for public improvements on the ground that there had been no lawful opening. If they have any rights that have been affected, they must seek redress in some other way. The fact that the street has been taken by the city as a public highway, gives the city the right to recover the cost of paving by assessments against the abutting properties.

The only other question that remains is, “Is a writ of scire facias to continue the lien of a claim under the Act of 1897, P. L. 420, of any effect to preserve the claim where the writ ignores the defendant?” Under the laws the owner of a property can register his ownership in the proper department and after such registration, he is entitled to notice of process. As long as he was not the “registered” owner, we see no duty devolving upon the city to direct the scire facias to him.

All the assignments of error are overruled. Judgment affirmed.