Steinogle v. Pittsburg, Mckeesport & Youghiogheny Railroad

Opinion by Henderson, J., The principal controversy between the parties to this action was whether a street existed between the west line of the plaintiff’s lot and the Monongahela river. It is [328] not disputed that the strip of land between the Power Block of lots and the river and between the lots known as “Gilmore’s Addition” and the river was used and known as “Water Street.” The blocks of lots referred to call for a street there and several streets open into it from the east. Parallel streets are also indicated in the plots and are opened. Gilmore’s second addition in which are located the plaintiff’s lots shows an extension of First street which was opened parallel with the river through the Power Addition and the first Gilmore addition. It also shows an extension of the vacant space which was known as “Water Street” between the Power Block and the first Gilmore Block and the river. Two cross streets in the Gilmore’s second addition show an intention of the proprietor to provide passageways from First street to this vacant space which the plaintiff contends is Water street. The plaintiff was shown the plan of lots of the second Gilmore addition and bought according to it. The western boundary of his lots is stated in the deed to him from John Gilmore to be Water street. There was evidence from which a jury might find that there had been for forty years or more an open street along the river front from the south end of the Power Block of lots to the Waddington property north of the second Gilmore addition, and the evidence warrants the conclusion that the defendant had knowledge of this fact. That the plaintiff’s grantor covenanted that a street existed on the west side of the plaintiff’s lots is shown by the deed, and corroboration of the existence of the street is given in the testimony as to its use. Between the grantor and grantee, therefore, the latter was entitled to the use of the way without obstruction or hindrance from the grantor or any person claiming under him with notice of the plaintiff’s right. “If there is anything settled by judicial decision in this state, it is that a 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 [329] shall be forever open, to the use of the public and operates as a dedication of it to public use; and that the owner of any lot in the general plan may assert the public character of any street and the right of the public to use it. The rights in dedicated streets acquired by a purchaser of lots by a deed referring to a plat are private contract rights, and are not affected by the failure of the municipality to act upon the dedication:” O’Donnell v. Pittsburg, 234 Pa. 401; Cake v. Sunbury Boro., 43 Pa. Superior Ct. 95. If the defendant had this notice there was a clear invasion of the plaintiff’s rights. The jury found on competent evidence that the road existed as claimed by the plaintiff and we see no error in the instruction of the court on that subject. In addition to the appropriation of the road by the defendant and the erection thereon of a railroad embankment more than seven feet high the plaintiff alleged that his property was injured by the obstruction of the flow of water from his lots onto the street when it rained. His testimony tended to show that there was a sufficient slope of the surface to permit the flow of water in that direction and that because of the building of the railroad his lot became very wet in rainy weather. There was some contradiction of the evidence on this subject but it was necessarily a question which the jury only could dispose of. Another ground of complaint was that a drain pipe which the plaintiff had laid from the cellar out to the bank on the west side of the street was closed up by the construction of the embankment and that he was thereby deprived of an outlet for water which might come into his cellar as a consequence of which condition his cellar became very damp and at times contained a large quantity of water. The defendant denied the right of the plaintiff .to drain into the street, but if the situation were as disclosed by the testimony offered in support of the action we think the defendant cannot successfully rest on that defense. The plaintiff alleges that the street [330] had been encroached upon by the river to such an extent as to make necessary the construction of a wall to prevent further undermining and that the road was perhaps thirty-five feet wide at the time the defendant made the fill. No restriction was put on the plaintiff in regard to the use of the street nor were there any conditions which restrained him from permitting the flow of surface water onto the street or of water from the cellar under the street. The placing of a drain from the cellar in the street was not an unreasonable use thereof. If at the time of the purchase of the lots the street extended to the river it might fairly be inferred that the grantor contemplated the use of the street for such a purpose. The improvement of the property reasonably suggests such a use and is consistent with the other rights which the plaintiff acquired in the purchase of the lots if the facts are as found by the jury: McElhone’s Appeal, 118 Pa. 600. In this view of the case it is not material whether there was evidence of the consent of the supervisors of the township to the placing of the pipe nor whether the supervisors were consulted with reference thereto inasmuch as the testimony does not show that the street was a public highway accepted by the township authorities. The learned trial judge excluded from the consideration of the jury all the evidence relating to noise and smoke, the obstruction of the river view and the loss of the use of the river as a water supply. This was done in language so plain and explicit that there could have been no misunderstanding by the jury in regard to the questions on which they were to pass and there is no substantial ground for complaint on this account. An examination of the whole case has not disclosed any material error. The judgment is affirmed.