Weitershausen v. Fairman

Opinion by Porter, J., The opinion of the learned judge of the court below, in disposing of the motion of the defendant for judgment non obstante veredicto, which will appear in the report of this case, states all the material facts and fully vindicates the conclusion at which he arrived. That opinion renders it unnecessary for us to enter upon any extended discussion of this case. While this proceeding involved only the character of the title of the defendants to a lot twenty feet by sixty feet in size, the same question is presented as to twenty feet in depth of the front of every lot abutting on the north side of Stockton avenue, now called Fountain street throughout the entire length of that highway. This strip of ground, twenty feet wide, and about a third of a mile in length, immediately adjoining the north line of the street, was originally part of the south common. The south common extended along the southern line of the inlots of the town of Allegheny and was a part of the tract set apart under the provisions of the Act of September 11, 1787, 2 Sm. Laws, 414, which authorized the supreme executive council to lay out the town and to reserve “without the said town, one hundred acres for a common pasture.” The lots of the town were sold in accordance with the provisions of the statute mentioned, and the purchasers of the inlots acquired, as appurtenant to their lots, a right in the 100 acres without the town for a common of pasture. Water alley was, in the original plan, laid out of a width of twenty feet and extended entirely through the town parallel to the north line of the south common and 240 feet distant therefrom. About the year 1815 Water alley was widened throughout its entire length to the width of forty feet, the additional twenty feet being taken entirely from the north ends of the lots between the alley and the south common; and at the same time the lot holders extended the lines of their lots to the southward,-so as to inclose twenty feet of the south common. ■ The lot owners were thus left in possession of the same amount of land which they had held [174] before the alley was widened, but all the lots were shifted twenty feet to the southward. There is no record of what proceedings were taken to thus widen Water alley, but it is an admitted fact in this case that the lot owners and those who have succeeded to their title have since the year 1815 been in the actual and exclusive possession of the strip of the former south common which was affected by the change. Concerning this transaction it was said, in 1855, by Chief Justice Lewis, in Bell v. Ohio & Pennsylvania Railroad Co., 25 Pa. 161, “Water alley, thus widened, has been paved by the city councils, and used by the public as a street ever since; and the portions of the common thus inclosed by the lot holders have been held by them in severalty as their own for the same period. The common itself, immediately in front of these inclosures, has been used more as a public thoroughfare than as a pasture 'ground, and no one can fail to perceive that this is more for the advantage of the adjoining proprietors than any right of pasture which they could possibly enjoy in the land. After the lapse of forty years, and the positive acts of the city councils in recognition of the exchange, the law will presume that the transaction was in pursuance of a valid purchase of a portion of the land subject to common of pasture by the parties entitled to the easement.” More than half a century has elapsed since the learned chief justice used the above language, in referring to this very strip of land, and during that interval the lot holders, including these defendants and those from whom they have derived title, have continued to hold their respective portions of the strip of ground in severalty, as their own, and the city has opened'and improved Stockton avenue immediately in front of the lots as thus extended. Those from whom the present owners of the land have derived title having, almost a century ago, parted with title to twenty feet' of the north end of their lots and having built upon and improved the lots as extended a like distance to the southward, it is conceded by the appellants that the [175] right of common of pasture in the land vested in the owners of the inlots of the town generally must be presumed to be extinguished. The reservation of the 100 acres as a common pasture, was not a dedication of that land to the public use. The fee remained in the commonwealth subject to the right of common in owners of the inlots of the town, as appurtenant to such inlots: Western University of Pennsylvania v. Robinson, 12 S. & R. 29. The right of common was one which the owners of the inlots might release, or modify at their pleasure, and the proprietors of inlots would be bound by an acquiescence, which would amount to a contract, and be equivalent to a release pro tanto, in permitting those who thought they had acquired title to the strip of common to expend money upon the property which they had so acquired: Carr v. Wallace, 7 Watts, 394. These authorities determine that the south common had not, at the time Water alley was -widened and the lot owners entered into possession of the strip of common, been dedicated to a public use. The title of the commonwealth was vested in the city of Allegheny, for public uses, by the Act of April 13, 1840, P. L. 303. The prayer of the defendant for binding instructions and his motion for judgment non obstante veredicto were, for the reasons stated in the opinion of the court below, properly refused. The judgment is affirmed. .