Cole v. Philadelphia

Opinion by Mb. Justice Potteb, The appellant in this case derived title by deed from Robertson in 1880. The property in question was described as bounded by the line of Fifty-fifth street, which at that time was plotted, but unopened. Under the rule of law settled in Gamble v. Phila., 162 Pa. 413, and Whitaker v. Phoenixville, 141 Pa. 327, the appellant took title in fee to the land, as bounded by the street, and an easement only, over the bed of the unopened street. This was all the title which Robertson possessed, and he could convey nothing more to appellant. The title to the bed of the street remained in the original holder, which in this case was the Walnut Street Land Company. It having made in 1860 the first conveyance calling for Fifty-fifth street as a boundary. The appellant sets up a claim of adverse possession of the bed of the street, upon the part of himself, and Robertson, his immediate predecessor in the title, for a period of more than twenty-one years, prior to the opening of the street by the city. He therefore contends that the bed of the street in question, opposite the land described in his deed, was also his property, and that it should be included in determining the value of his property, before the opening of Fifty-fifth street by the city. But appellant, and his predecessor, Robertson entered into possession by privity with the original holder, and in subservience to that title. The statute of limitations would not therefore begin to run until the existing privity was broken by some unequivocal act: Cadwalader v. App, 81 Pa. 211. There was no such act, and none amounting to an infringement of the uses to which the original owner was entitled to put the premises after the grant of the easement over the bed of the street. The [466] appellant took in accordance with, the terms of his deed from Robertson, and cannot be heard in assertion of rights inconsistent therewith. His acceptance of the deed was inconsistent, with the claim of adverse possession. Every element for which the appellant was entitled to recover, was fairly presented to the jury for consideration. The court left it to the jury to say whether the opening of Fifty-fifth street, under all the circumstances, decreased the value of the appellant’s property. They found that it did not. The assignments of error are dismissed. Judgment affirmed.