Verona Borough v. Allegheny Valley R. R.

Opinion by Mr. Justice Mitchell, The most important question is whether there was a legal opening of West Railroad avenue. The borough council attempted to do this under the act of 1848, as is shown by the mode of proceeding adopted. But the ordinance of June 7, 1871, was not published, nor was the plan made as prescribed by the act. The notice required to be thus given to the pro* [375] perty owners along the line of the proposed street was not given. It is argued that the substantial interest of the property owners is in the opening, not the location, and that notice of the former serves every purpose. But this argument cannot prevail against the plain words of the statute. It is “ the location and limits ” of the street that the council is to determine, and “ a plan or specification of such location,” that is to be made and deposited for public examination and inspection, and of which notice is to be given. By the terms of the act, damages are to be assessed only upon the application of the owner, and he is liable to be barred if he does not apply. He is therefore entitled to the notice, with all its accompaniments of time and circumstances, that the statute prescribes in his favor. Moreover the statute requires not only notice, but a plan or specification of the location. No such plan appears to have been made at the time or in pursuance of the ordinance of June, 1871, but on October. 18,1871, a second ordinance was passed directing the opening of West Railroad avenue, “according to plan in the recording regulator’s office,” and on the same day a resolution was passed instructing the street committee to employ a competent engineer to survey and make a plan of the borough, and to define the. location of Railroad avenue, and to report at the next regular meeting of the council. The subsequent action and ordinances for several years, at least as late as 1874, show conclusively that no plan was settled or approved by the council. A plan was made at some time following the ordinance of October, 1871, büt the master has found that it was a mere outline or sketch conveying no more information than the general terms of the locating ordinance itself, and was not such a plan as the statute contemplates. We see no reason to doubt the correctness of this conclusion, but even if the plan was in itself sufficient to satisfy the statute, there is the entire absence of the municipal adoption or approval to make it binding on the borough and thereby on the property owners. This is plainly contemplated by the act of 1848, and is implied by the language of this court in Borough of Verona’s Appeal, 108 Pa. 83. The locating ordinance of June 1871 was not published, nor was any plan made under or in pursuance of it. The ordinance of October 1871 was published, but it misrecited [376] the locating ordinance as of July instead of June, and the plan that was made after its passage, such as it was, instead of being deposited in the recording regulator’s office, was handed by the outgoing regulator, not to council for its approval, but to the burgess, and was advertised as in his possession for inspection. It appears that at that time there was no recording regulator in office, and we will not say that under the circumstances the deposit in the hands of the burgess might not have been a sufficient compliance with the statute, but it is one item in the series of objections to the validity of the attempted opening of the street. Not only was no plan made or approved under the locating ordinance, and notice thereof given, but the next term of the quarter sessions to which property owners might apply for damages, had not expired, when the ordinance of October 1871 directing the opening of the avenue was passed. This action was plainly invalid. The conditions under which the council had authority to order the opening of the street had not been complied' with. On this branch of the case we find the whole proceeding so full of irregularities and defects that it cannot be sustained. What has been said disposes also of the contention that the appellant is estopped by actual notice to its officers of the plan and proposed action. The plan was not such as was necessary and the evidence is conclusive that council itself did not consider either the location or the plan sufficiently adopted or approved. Waiving all other questions as to whether the facts would constitute a notice binding on the appellant, it is plain that the plan cannot have any more efficacy against the railroad company than against the council. The whole subject of a plan was open and required further authoritative action by the council, and appellant was not bound to move till such action had been taken. It remains to be considered whether there was any dedication of this land to the public use. The master’s report shows that the equitable title was in the appellant before the deed and plan by Phillips which are claimed as a dedication. To bar appellant’s right therefore the evidence should be clear, but it was not so. The plan was indefinite as to date, the act to make it binding was not completed by Phillips himself, but [377] after his death, and after the appellant was in exclusive possession. And the master finds that the plan did not include the railroad’s property. The master therefore was right in reporting that there was no dedication by Phillips which affected appellant’s title. The learned court below conceding that the evidence was not sufficient to establish a dedication by use alone, thought that it would justify a finding of a dedication accepted by the public by which appellant was estopped. In this view we are unable to concur. There is an entire failure of evidence from which any intent to dedicate can be fairly inferred. The evidence on this point is fully reviewed by the master and it is unnecessary for us to go over it in detail. We are of opinion that it shows merely a permissive acquiescence by the railroad company in an occasional and varying use by the public, such as was held insufficient in Com. v. R. R. Co., 135 Pa. 256, 273. Decree reversed, injunction dissolved and bill dismissed at the cost of the appellee.