Cotter v. City of Philadelphia

Opinion by Mr. Justice Fell, The plaintiffs’ land through which the city opened streets in 1893 is part of a tract which was sold in 1848, in building lots, according to a plan made and recorded by the owner thereof. In the conveyances the lots were described as bounded by the streets now opened which were “laid down on a plan for the accommodation of these and other lots.” In Quicksall v. Philadelphia, 177 Pa. 301, it was held that the sale and conveyance of the lots on this plan in 1848 operated as a dedication of the streets to public use, but that the owners of lots abutting on the streets could recover damages for the opening in 1893, because the limitation of twenty-one years, fixed by the Act of May 9, 1889, P. L. 173, within which the city could open streets without compensation, had expired. At the trial of this case the city sought to evade the limitation of the act of 1889 by proof that a conveyance of the lots was made in 1880, in which they were described as lots marked on the plan referred to, made and recorded in 1848. This it was claimed was a new dedication, against which the limitation had not run. This claim cannot be sustained. The conveyance in 1880 was by a purchaser at sheriff’s sale under a judgment against the grantee of the grantee of the person who, in 1848, had made the plan and sold according to it. The reference to the plan for convenience of description, and to the streets as boundaries, does not give rise to an implication of a new dedication of the land for streets. A dedication to the public use must rest on the intention or clear assent of the owner, and must be under such circumstances as to indicate an abandonment to the use of the community: Dovaston v. Payne, 2 Smith’s Leading Cases, 154. The owner in 1880 had nothing to rededicate. The dedication in 1848 was binding on him, and continued so until the limitation of the act of 1889 relieved the land of the servitude imposed upon it. The judgment is affirmed.