Atlantic Avenue

Opinion by Rice, P. J., Prior to the dedication to which we are about to refer, there was an alley twenty feet wide extending south from Washington street a distance of 189.4 feet. The owners of the land lying to the south of the terminus of the alley plotted the same into lots, streets and alleys and sold the lots according to the recorded plan. One of the streets thus laid out, dedicated and opened to public use was, practically, an extension of the alley, but instead of corresponding in width to the alley it was forty feet wide. This, we infer from the statements in the paper-books, was an opened traveled way forty feet wide at the time of the institution of these proceedings and had been for several years. It does not appear that it has ever been accepted by the city. The situation is represented with'sufficient accuracy for present purposes by the accompanying draft. By ordinance approved March 24, 1898, the city councils “located and established” Atlantic avenue as beginning at Washington street and extending thence by courses and distances to the other terminus of the dedicated street, “ and of the width of forty feet throughout,” and by an ordinance approved May 81, 1899, they directed that the street as theretofore ordained and established, “ be opened throughout, and the damages caused thereby be assessed upon the property benefited in the manner provided by law.” The land actually taken by the proceeding was a strip 189.4 feet long and twenty feet wide. For this the viewers awarded to the owner $1,200 as damages, and assessed against him $100 as benefits. The remaining $1,100 they assessed as benefits against the owners of lots abutting on the street, including not only those abutting on the alley [123] that was widened, but also those abutting on that part of the street not widened. The latter filed exceptions, which the court sustained, and from that order this appeal was taken. The sale of lots according to a plan which shows them to be on a street implies a grant’ or covenant to the purchaser that the street shall be forever open to the use of the public, and operates as a dedication of the street to public use. The right passing to the purchaser is not the mere right that he may use it, but that all persons may use it. ■ Such dedication of the street by recording a plan and selling lots accoiding to the plan operates as a relinquishment of all claims for damages for the use of the land within the lines of the street for street purposes, and no claim therefor can be sustained unless the street is within the provisions of the Act of May 9, 1889, P. L. 178. It is not pretended that this street is within the provisions of that act. “ Such dedication was said in Heckerman v. Hummell, 19 Pa. 64, to be a contract with the public. The distinction between the sale of lots according to a plan made by the owner upon which the streets are laid out and the mere reference in aid of description to streets projected by the municipality is manifest. In the former case the inference of dedication apses, in the latter it does not: ” Fell, J., in Quicksall v. Philadelphia, 177 Pa. 301. See also Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92, and cases there cited. It follows that the ex-ceptants were not in a position to claim damages by reason of the taking of the land upon which their lots fronted, although it must be conceded that their title went to the middle of the street. Nor, in view of the provisions of the act of 1891 requiring the viewers to report the damages and benefits separately, is it possible to assume that anything was allowed them as damages by way of off-set to the benefits. For aught we know, if they had been allowed compensation as if this were the opening of a new street and not the mere formal acceptance of a street already opened and dedicated by the landowners, their damages would have been equal to any special or peculiar benefits they received. As a result of an 'approval of the report of viewers they would have been compelled to pay in relief of the city, over three fourths of the cost of a particular part of the improvement, although, so far as appears, they had, by dedication of their land, contributed their full share of the cost of [124] the whole improvement. Certainly, if the widening of the alley and the acceptance of the dedicated street had been separate proceedings there would have been no possibility, under the late decisions, of assessing the cost of the former improvement upon the owners of land fronting on the dedicated street. We are not convinced that a different rule applies because the city saw fit to include both in one ordinance. The particular improvement from which the damages accrued was the taking of a strip twenty feet wide and 189.4 feet long in widening the alley, so as to make it conform in width with the opened street dedicated by the owners. No other land was taken, nor was any physical change made or contemplated in the street, ■except as above stated. This is not a case, where, in apprehension of a taking by the municipality, the landowner throws out his land to the public for the purpose of escaping assessment, and we need not consider whether in such a case the attempt would be successful. So far as the facts are concerned, the case is very imperfectly presented, but as we understand them, it does not differ in principle from the Orkney Street Case, 9 Pa. Superior Ct. 604; s. O. 194 Pa. 425, and the class to which it belongs. See also William Street, 13 Pa. Superior Ct. 266. The learned judge of the court below in passing on the exceptions said: “ The facts are familiar to us ” (evidently the case was submitted without much regard to technical formality of proof) “ and the location also. As we view the law we believe the only properties that are specially benefited, and in such a position to be assessed with benefits by the opening of this street, are those properties that are adjacent and abutting thereon, to wit: . . . . these being the only properties adjacent to or adjoining the lands taken.” We cannot say that there was error in this conclusion; and in arriving at this result we have not taken into consideration the allegation in the appellee’s paper-book that in 1874 the street in question became a public road or highway by proceedings in the quarter sessions under the general road law. The order is affirmed.