Commonwealth v. Phila. R.

Opinion, Mr. Justice Mitchell: This is an indictment for a public nuisance by the erection and maintenance of a fence along the line of the railroad between Richmond and Cedar streets, in the city of Philadelphia, formerly in the district of Richmond, whereby certain streets named are obstructed. The first step necessarj^ in the commonwealth’s case, therefore, is proof that the places obstructed are public highways or streets. The railroad was located in 1837, and the right of way acquired in 1839. The present streets were plotted on the public plan of the district of Richmond, confirmed September 18, 1849, under the authority of the act of assembly incorporating the district of Richmond, February 27, 1847, P. L. 181. The records of the department of surveys do not show the existence of any of the streets named in the indictment, prior to the plan of 1849, and that •plan made them streets only on paper, mere plotted lines, to show for the public convenience, in the language of § 16 of the act of 1847, “where and in what manner such streets, roads, lanes, and alleys will in future run.” Such plan did not, of course, acquire for the public any right of use for travel. Proceedings to open were still necessary before there would be any actual streets, and before the title of the owners'or their exclusive possession and use of the land could be interfered with. No such legal proceedings were ever taken by the district of Richmond or the city of Philadelphia to procure the opening of any of the streets in question across the defendant’s road. Some of the streets appear to have been opened in fact up to one side of the railroad, and some on both sides, but no evidence was given as to any legal proceedings under which [271] any of these openings were made. These facts, so far stated, are undisputed, and the commonwealth concedes that it has not shown any formal opening across the railroad, but relies on public user and implied dedication. The use which will establish such a right must be defined, uniform, adverse, and under claim of right, and must have continued for twenty-one years. A rambling use, sometimes by one path and sometimes by another, will not suffice: Arnold v. Cornman, 50 Pa. 361; nor will a use by the permission of the owner: Root v. Commonwealth, 98 Pa. 176, unless, as said by Trunicey, J., in the latter case, “ under such circumstances of acquiescence as clearly indicated the owner’s design to surrender control, and donate the way to the exclusive use of the public.” The first, second, and third assignments of error are to the exclusion of questions by the defendants, on cross-examination of the commonwealth’s witnesses, tending to show that the travel by the public across the railroad, to which the witnesses had testified, was not uniformly along the lines of the streets, but was at various points, and in every direction. These questions were relevant both upon the uniformity and definiteness of the use, and upon its adverse or permissive character. They struck the very, key-note of the true inquiry, and should have been admitted. But, even without them, the evidence leaves no doubt whatever that the habit of the people was to go from point to point, diagonally, longitudinally, or by short cuts, as upon an open common, without any defined or located paths, and disregarding alike the tracks of the railroad and the lines of the plotted streets. Not a single witness really testifies to any other kind of use, more than twenty-one years before the erection of the fence. An occasional expression may seem to go further, but, put to the test of cross-examination, its force vanishes, and the general effect remains as stated. But the case of the commonwealth is equally defective in another point. Such use as was shown was clearly not adverse. In the first place, the action of the municipal authorities was not only not adverse, but was uniformly based on the recognition of the railroad company’s exclusive right. Thus, the agreements of 1850 and 1852, between the company and the district of Richmond, as to the widening of the roadway, [272] provide that, if any embankment shall be required on the southerly side of the railroad, the company shall support it by a vertical wall, with a passage-way under the tracks at Cedar street. Clearly, this provision conceded that the other streets on the plan were not at that time opened streets. Again; the ordinances put in evidence, such as that of 24th March, 1871, for the paving of Thompson street, of 6th April, 1872, for the grading, and 13th May, 1872, for the paving of Belgrade street, and others relative to streets in the same neighborhood, all direct the work to stop at the line of the railroad, without in any instance attempting to cross. And, in 1874, the city of Philadelphia entered into a carefully prepared and important contract with the railroad company for the erection of a bridge at Richmond street, in such manner as to require the elevation of the tracks across all the streets in the indictment; yet the city made no claim of any rights to opened streets at those points, nor even any suggestion as to public convenience in regard to them. It would be difficult to find a series of acts amounting to a plainer disclaimer of right, and a more explicit admission that such use as existed was permissive only. Nor is there any sufficient evidence of use attended with expenditure by the municipality, such as might by acquiescence establish a right in less than twenty-one years. There is some evidence that the fence does, on the line of some of the streets, stand over a former pavement. But the evidence is uncontradicted that the fence is on the line of the defendant’s way, and, as already said, no authority has been shown for any paving across that line. If the witnesses are not mistaken, the explanation may be that the pavers, in the absence of a fence, got beyond the line, and did that paving without authority; or, the paving may have been done up to the original right of way before the widening by agreement with the district of Richmond, and, if so, that agreement would clearly authorize the removal of the paving, or building a fence over it. But, whatever the explanation may be, the fact of municipal expenditure and subsequent encroachment by the defendant is not proved, and the evidence certainly falls far short of the requirements of a criminal prosecution. But, secondly, did the use by the public, irrespective of the action of the municipal authorities, establish a right of way ? [273] The evidence fails to show it. All the witnesses agree that the crossing of the tracks by the public was not only rambling and unlocalized, as already discussed, but that it was always subject to interruption by trains and standing cars, which the people had to wait for, or climb over or under. There is no evidence that the railroad company arranged its business with any regard at all to such use, paid the slightest deference to it, or did anything at all but tacitly permit it. A use by such sufferance acquires no rights whatever. “Permissive trespasses .....never raise the presumption of a right as against an individual; much less, as against a public body: ” Susquehanna Co. v. Deans, 33 Pa. 133. The same review of the evidence that shows the use to have been permissive, negatives the idea of implied dedication. Dedication, as was said by our Brother Green in Griffin’s App., 109 Pa. 155, “is a matter of intention..... Where there is no opposing proof, long-continued use by the public is evidence of an intent to dedicate, but it is by no means conclusive, and always yields to contrary proof of a satisfactory character; ” and he cites with approval the passage from Goddard’s Law of Easements, 182, that “ the intention to dedicate ought to be clearly manifest in order to deprive a landowner of his property.” The evidence in this case would fall far short of this requirement, even in a civil issue. The result of the commonwealth’s evidence, taken as a whole, is not at all doubtful. It shows the location and building of the railroad through an open country; the gradual extension of buildings and population on both sides of the line; the use by the people of the railroad tracks in the same manner as the vacant lots alongside of them, for passage in any direction as on an open common, and the acquiescence of the railroad company in such use, without any concession of their own rights or convenience, until such use became a burden, and they terminated it by the fence complained of. Such acquiescence neither lost any rights to the company, nor gained any for the public. It was the ordinary course of the development of outlying surburban lands into city lots. While streets are only on paper, and no formal assertion of right is made by municipal authority, owners are not required to be churlish in interfering with the convenience of their neighbors. When the [274] use becomes so general, uniform, defined, and continuous as to begin to assume the aspect of an assertion of right, then is time enough for the owner to enforce his exclusive possession. There is nothing more in this case. A private owner would clearly not be barred, and the rights of a corporation are the same. The jury should have been directed peremptorily to find a verdict of not guilty. It is, no doubt, a serious inconvenience to the public to have this fence cutting the neighborhood in two for so long a distance. The growth of population and travel lias reached a point where freer communication is necessary. But the remedy is plain. Either the councils or the property owners can at .any time institute proceedings to have the streets opened in the regular, orderly, and legal way, with due regard to the interests and rights of all parties. It cannot be done by a short cut through the criminal court. It is not within our province to say what course should be followed, but we may be permitted to suggest that, as grade crossings would be highly dangerous and others expensive, the whole subject is one which should commend itself to the city councils for careful and wise treatment, by arrangement with the railroad company, if possible, in the same amicable spirit heretofore shown in the agreements of the city and the district of Richmond in regard to the same matter. Judgment reversed.