Borough of Birmingham v. Anderson

The opinion of the court was delivered by Read, J. Dr. Nathaniel Bedford, being the owner in fee simple of seventy-five acres of the Ormsby Villa survey, on the south bank of the Monongahela river, opposite Pittsburgh, laid out the town of Birmingham in the year 1811, which covered the whole of the northern end of this tract. He of course made a plan of his town, by which his lots were to be sold — and a copy of it, entitled a plan of the town of Birmingham, was placed on record in December 1811, in Deed Book R, vol. 17, page 412, but by whom does not appear, and it was cut out by Mr. Nixon, the recorder, in 1851 or 1852, and put in the Plan Book, vol. 1, page 4. The description in the deed from John Ormsby to Dr. Bedford for this tract, which was dated 1st of December 1804, and recorded in recorder’s office of Allegheny county, in Deed Book, vol. M, p. 365, was as follows: — “Beginning at a black oak stump on the bank of the river, and on the manor line, and running thence alone the same line south three degrees east, 200 perches, to a red oak, thence by land of Oliver Ormsby, north eighty-seven degrees east, 62 perches, to a post, thence by remaining part of same tract, north three degrees west, 211 perches, to a post on the bank of the river, and thence down the same, south seventy-seven degrees west, 63 perches, to the place of beginning.” Whoever drew the plan on record must have had this deed in his possession, and if so, it must have come from Dr. Bedford, whose title paper it was, or we must resort to the improbable supposition, that the framer of the plan got a copy from the record without the knowledge of the Doctor, and forged the original of this paper. The plan furnishes internal evidence of this. The line on the bank of the river, in the deed is seventy-seven degrees west, 63 perches; in the plan seventyvseven and a half degrees west, 63 perches; the southern line in the deed is north eighty-seven degrees east, 62 perches, to a post, whilst the parallel line on the plan is identical as to course and distance. The whole southern line is therefore 1023 feet. In the deed of Dr. Bed-ford to Wilkinson, of 16th of November 1811, it is described as “ a lot in the town of Birmingham, on south side of Monongahela river, and marked in the general plan of said town No. 12, bounded by Ormsby street, by Virgin alley, and lots 3 and 13, containing in breadth on Virgin alley 60 feet, and in length on Ormsby street 95 feet.” This is on the plan exactly as described here. In the deed to Thomas Griffin, April 5th 1813, “ Two certain contiguous lots marked in the plan of said town,” (Birmingham) “Nos. 19 and 27, 120 feet in breadth, and in length or depth from Virgin alley to the leach of the Monongahela river, bounded by Ormsby street, Virgin alley, by lot No. 35, and by the beach [512] of the Monongahela river.” These lots are in the plan as described here, and this conveyance recognises the beach of the river as laid down on it. The deed to Rebecca Stephens, dated 5th April 1815, is for No. 10 in plan of said town — “ bounded by Ormsby street, by the beach of the Monongahela river, and by lots Nos. 1 and 11, containing in breadth 60 feet, and in length or depth from lot No. 1 (should be 11) to the beach of the Monongahela river,” corresponding exactly with the plan. And in the deed of Dr. Bedford to William Allison, dated 28d January 1817, for lot No. 43,'he describes it as “extending to Water street, or the Monongahela river, bounded by Water street or said river” — showing the use of the designation of Water street found on the plan as early as that period, by the founder of the town, which he himself had planned and laid. out. We have, therefore, the breadth of the town on the plan, and by the other evidence we find some of the lots are certainly 60 feet in width, and by looking at the plan, we perceive that all the lines of the streets and lots are parallel from south to north, and that there are of course fourteen lots of 60 feet each from east to west, equal to 840 feet, and three streets of 60 feet each in width, or 180 feet, making together one thousand and twenty-three feet, being only three feet more than the 62 perches, a small variation in so large a plot, at so early a day, and in so rough a region as it then was. In the Act of Assembly of the 19th April 1858, under which this controversy arose, the distance from Ormsby street eastwardly, to the eastern line of the town of Birmingham, is stated to be one hundred and twenty-one feet, the actual width of lots Nos. 1 and 10 — which on the plan are 60 feet lots, and are, therefore, one hundred and twenty feet on their southern line. We have, therefore, on the plan iflself more than is to be found on Holmes’ map or plan of the city of Philadelphia, for that has no names of streets, or courses, or distances, except by a rough scale of 528 feet, and a delineation of the points of the compass at the top. The first purchasers have their lots designated only by numbers, and the bank on the Delaware is left open east of the front street, which it is known was intended as a top-common from end to end, and yet this plan is the foundation of a great and populous city, and has always been received in evidence as well as the list of first purchasers, which contains only the name of each purchaser, and the number of his lot. The present plan contains what we have already mentioned, and also the names of the streets, and of the square, all of which remain to the present day — Bedford Square having a market-house erected on it — and the plan corresponds with the lines on the ground, and the borough is connected with Pittsburgh by the [513] Birmingham Bridge, built at the foot of one of the streets designated on the plan. It is clear from the evidence in this cause .that the original of this plan is lost, and cannot be found — and that if this paper is not evidence, the holders of all the lots in this town plot are without any means of identifying their lots or their streets, because their deeds all refer to some general plan existing in 1811 when this paper was recorded. The plan is a title paper of the borough, and of every lot-holder, and the municipal authorities took the only course they could devise to establish its authenticity, by perpetuating the testimony of the person who drew the plan, and who is now dead. Fifty years have elapsed, and where is another living witness to be found ? The present suit arose under a claim for damages by the defendant in error, under the Act establishing a Public Wharf or landing in the borough of Birmingham, in the county of Allegheny, passed April 19th 1858, upon the ground that her four lots extended to the low water mark of the river. The plaintiff below claimed under a deed from Dr. Bedford to Patrick McKeag, dated 2d January 1812, after the recording of the plan for “five certain lots or pieces of ground, situate in the town on the south side of the Monongahela river, in St. Clair township, Allegheny county, marked in the general plan of said town Nos. 48, 55, 63, 71, and 105; said lots 49, 55, 63, and 71, lying contiguous to each other, and bounded by Denman street, Virgin alley, Grosvenor street, and the Monongahela river.” Now this whole conveyance depends upon the general plan. How are yon to tell where Denman street, Virgin alley, and Grosvenor street are, their width and location, or whether it was No. 48 or 49, or where No. 105 was, except for the plan which is the very foundation of the plaintiff’s title, and which must have been seen by the grantee before his deed was executed ? No. 48 is on Denman and Carson streets, at the south end of the town, and No. 105 is on Bingham street, and could not be identified at all except for the plan. The plan is, therefore, an essential muniment of the title of the defendant in error, and she could not proceed a step without it. Under these circumstances the defendants below offered this plan in evidence, in connection with the testimony of John O’Hern, taken in pursuance of a bill to perpetuate his testimony in No. 108 March Term 1847, in the Court of Common Pleas, with further evidence that this had been a recognised plan of the town of Birmingham for fifty years. If O’Hern’s testimony was admitted, it proved the plan to be a copy, and of course the plan must have been admitted also, as the original was lost or mislaid. The court rejected both, after examining further testimony; the record of the plan was offered again, and it was again rejected. [514] It is clear that there was a plan made by direction of Dr. Bedford, upon which the whole title of his intended town was to depend, for he sold by its numbers, and his vendees, particularly Mr. McKeag, purchased by them. All, therefore, had notice, and must have seen his plan somewhere. No doubt some one said, Doctor, put this plan on record; it is a necessary part of our title. "We have seen already that this copy, in the first place, corresponds with the survey on the ground, and that it is accurate ; and as it is conceded there was a plan, where could it come from except from Dr. Bedford, and could it or its original have been made by any one who had not the possession of his title-deed from Ormsby ? The natural presumption, therefore, is, that it was placed.on record by Dr. Bedford, and if so it was competent evidence, and should have been admitted by the court. This plan is fifty years old, made and put on record in the year the town was laid out, and is clearly, with the work on the ground, the work of a surveyor who understood his business. In connection with this plan was offered the testimony of John O’Hern, taken on the 1st of April 1847, on a bill to perpetuate testimony on the part of the borough of Birmingham, in the Court of Common Pleas of Allegheny county, with further evidence that this had been a recognised plan of the town of Birmingham for fifty years. The witness was a surveyor, and is now dead, and every owner of property was interested in establishing what turned out, after the strictest search for many years past, to be the only paper which can be found purporting either to be the original plan or a copy of it. When, therefore, the bill was filed by the borough, there was no individual whose interest it was to oppose the action of the municipal authorities, for it was an essential muniment of title of every lotholder and citizen of the borough, and, therefore, there was no person against whom the bill could be brought unless they had made defendants the whole population of the town, who were no doubt in favour of their action. If any one had been selected but Mrs. Anderson, according to the present argument, it would not have been evidence against her. Suppose that this plan had been that of a populous city of 100,000 or 600,000 souls, against whom should such a bill be brought? for certainly if there is but one living witness who can prove its plan, there must be some mode of perpetuating his testimony. A city cannot be remediless, simply because it is so large that it is impossible to make all its inhabitants defendants, and therefore you must resort to the only practicable method adopted in this case. But the declarations of a deceased surveyor, in relation to lines run and plans made from actual survey, are clearly evidence in [515] an instance like the present, which concerns a matter of general if not public interest. It is of no consequence whether such declarations were under oath or not, on a bill to perpetuate testimony, or on the trial of a cause between other parties. It is within a well known and well defined exception to hearsay testimony. Judgment reversed, and venire de novo awarded.