Patterson v. Peoples Natural Gas Co.

Opinion by Mr. Justice Fell, The defendant justified its entry upon and use of the plaintiff’s land for the purpose of laying gas pipes, upon the ground that the land had been dedicated for use as a public street. In 1884 the plaintiff sold a tract of unimproved land to John Reaman. On the city plan a proposed street had been located which passed over this land. No steps had then been taken, or have since been taken, by the city or any one to open the street. It was merely a plotted street. From the conveyance the plaintiff reserved the land within the lines of the street. The words of the reservation are “ Excepting and reserving from this conveyance all that part of the above described property lying within the lines of Bates St. as laid out upon the plan of the City of Pittsburgh.” The street was not named as a boundary nor referred to in the description. Reaman, the plaintiff’s grantee, divided the tract and conveyed the parts, describing them as bounded by Bates street. Some of his grantees subdivided the parts they had purchased into building lots and sold them as fronting on Bates street. The land within [560] the lines of the street was graded by these grantees and used as a public street. This was the condition of the property when in 1888 the gas pipes were laid, and it has remained practically the same ever since. The mere placing of the street upon the city plan conferred no right to the use of the land as a highway upon any one. The plaintiff made no conveyance by the implied covenants of which the land was to be left open for the use of his grantees and the public, and we find no act of his to justify the inference of dedication. He reserved from the land described a part lying within the lines of a projected street. The street was not opened. No proceedings had been instituted to open it. It had no existence except upon paper. It was not a boundary and was not named in the description of the land conveyed. Before the conveyance the plaintiff was at liberty to make such use of the land conveyed as he wished. He could have inclosed and cultivated it, or have built upon it subject to the right of the city to take it without payment for improvements made after notice of the location of the street. None of these rights was lost by his conveyance and of course they could not be affected by the subsequent conveyances of his grantee. It is not the case of the right of way over a street named in the description as a boundary, nor of a street laid out by the grantor over land which he has sold in lots, nor of the acquiescence of the owner in a use for such a length of time that public convenience or private rights would be materially affected by its interruption. There is nothing in the evidence upon which to found an implied dedication which would operate as an estoppel. “ A dedication to the public of the use of land must rest on the intention or clear assent of the owner; which may be manifested by writing, sealed or unsealed, or by parol, or by acts inconsistent or irreconcilable with any inference except such consent; but the dedication must be under such circumstances as to indicate an abandonment of the use to the community by the owner .... and the acts and declarations to effect a dedication should be unambiguous and unequivocal.” Donaston v. Payne, 2 Smith’s Leading Cases, 155. The measure of damages was the injury caused the plaintiff' by the use to which his land had been subjected by the defendant. The instruction on the subject in the general charge [561] and in the answers to the points was correct, and the amount of the verdict makes it certain that the rule was followed by the jury. The objections to the admission of testimony which appear in the seventh assignment of error might well have been sustained, as the questions asked were wanting in clearness and tended to present a wrong standard for the assessment of damages, but as it is evident that they did no harm the case should not be sent back. The judgment is affirmed.