Du Bois Cemetery Co. v. Griffin

Opinion by Mb. Justice McCollum, If John Rumbarger, in the exercise of his lawful right, laid out and opened on the strip of land in dispute a street or alley for public use, and the municipality accepted and maintained it for the use to which he dedicated it, no one will contend that he could thereafter exclude the public from it and appropriate it to a use destructive of or inconsistent with the dedication. What he could not do in this respect the appellant cannot do, because it has no greater right in tbe alley than he had after the dedication and acceptance: Its rights in the subject of this litigation are such as its grantors acquired by the deed of April 26, 1890, from Rumbarger’s executor, and the deed of May 15,1890, from Henry Prothero. These rights, by virtue, of their deed of August 7,1890, passed to the appellant, but as the grantors owned forty-eight fiftieths of the capital stock of the corporation, there is no room for a contention that the grantee has rights in the disputed territory which they did not have under the above mentioned deeds to them. The boundaries called for by the deed of April 26th and the deed of May 15th are in exact accord with the appellee’s contention ; tbe former calls for an alley on the northern side of the cemetery plot between Main street and State strget, over the land in dispute, and the latter adopts the description in the deed of May 25, 1880, from Rumbarger to W. N. Prothero, who conveyed to Henry Prothero on the 28th of March, 1881. This description does not include any portion of the cemetery lot but it makes a line of that lot a boundary of the Prothero lot. This boundary is where the rail fence was when the deed was made to W. N. Prothero and is twenty-five feet from the picket fence afterwards built by Rumbarger. The strip of land between this boundary and the picket fence is not includ [96] ed in Rumbarger’s deed to Prothero or in his executor’s deed to the appellant’s grantors. These deeds, however, are consistent with the claim that it is a public street or alley. It seems to us therefore that the controlling questions are, whether there was a dedication of it to public use by Rumbarger and if so whether there was an acceptance of such dedication by the municipality. The learned court below, in an opinion manifestly founded upon a careful consideration of the testimony and the law applicable to it, answered these questions affirmatively. In the findings and conclusions in reference to the dedication and acceptance of the alley the court disagreed with the master, and it is urged that the findings of the latter should prevail on the ground that he had better opportunity to judge of the credibility of the witnesses and the weight of the testimony than was allowed to the former. The disagreement between the court and the master on the fundamental question in the case was this: The master thought that the acts and declarations of Rumbarger, as related by the defendant’s witnesses, were not sufficient to establish a dedication, while the court thought they were sufficient for that purpose and called for a finding that a dedication was made as claimed. It will thus be seen, that the disagreement related to the effect of the acts and declarations and did not involve the question whether the acts were performed and the declarations were made as alleged. We think it will be conceded that the court was quite as competent to pass upon their effect as the master was. The next disagreement we note between the court and master on an important question in the case relates to' the alleged acceptance of the alley by the municipality. The master thought “ the wqight of the evidence ” showed that there was no acceptance, while the court thought the acceptance of it was established “ by the preponderance of the testimony in the case before the master.” We have carefully examined and considered all the evidence affecting these disagreements and are convinced that the findings of the court in reference to the dedication of the alley by Rumbarger and the acceptance of it by the municipality are warranted and sustained by the decided preponderance of it. We do not deem it necessary to embody the evidence or any part of it in this opinion. It consists of the [97] declarations of Rumbarger showing his purpose to establish on the land now in dispute a street or alley for public use, of his acts in execution of his purpose and of the acts of the municipal authorities evincing their acceptance of the alley for the use to which he dedicated it. That Rumbarger opened an alley upon the land in dispute, at least seven years before his executor conveyed the cemetery property to the appellant, appears to be conceded, and the principal contention of the latter in reference to it is that he opened it for his own convenience or for the convenience of the persons to whom he might sell lots adjoining it, and not for public use. But this contention is sufficiently answered, we think, by his declarations from time to time, showing his purpose in establishing it, and b}r his applications to the borough authorities to put and keep it in order. It is manifest, from what he said and did, that after it was opened he considered he had no further control of it, and that the duty of maintaining it was on the borough. The work upon it from that time until it was closed by the appellant was done by the borough and this is sufficient evidence of an acceptance of it by the latter as a public alley or street. For the reasons stated by the learned judge of the court below we concur in his conclusion that Rumbarger’s dedication of the alley to public use was not an abridgment of or interference with the rights of the parties to whom he had sold lots in the cemetery, nor in violation of the act of April 5, 1849, which declares that “ it shall not be lawful to open any street, lane, alley or public road through any burial ground or cemetery within this commonwealth.” In accordance with the views we have expressed we overrule the specifications of error and hold that the appellant cannot close the alley, dedicated and accepted as aforesaid, against the appellees or the public. Decree affirmed and appeal dismissed at the cost of the appellants.