Weiss v. Bor. of South Bethlehem

[304] Opinion, Me. Justice Green : The learned court below, in answer to the defendant’s first point, distinctly charged the jury that if the plaintiff’s ground in question had been used by the public as a street continuously and uninterruptedly for twenty-one years, prior to its adoption as a street, that is evidence of a public dedication. In answer to the second point of the defendant, the jury was instructed that if the public had an easement upon the twenty feet strip in question, to use it as a public street, the opening or adoption of the street within the lines of the easement would be no damage to the Weiss property, and the verdict should be for the defendant. The defendant’s third point requested an instruction that public dedication is a question of intention, and the fact of the twenty feet strip having been used by the public as a public street, and the fact that it leads from one avenue to another, and that a building line had been maintained by the property owners along the strip, and that it is the natural route to and from the works of several companies, is all evidence of dedication and the intention to make it a public highway. This point and the first were affirmed, with the qualification that the facts mentioned in the points were some evidence of dedication, but not conclusive. The second point was affirmed without qualification. In the general charge the court more specifically instructed the jury that if there was a dedication of the land to public use as a street, either by Francis Weiss or any of his predecessors in the title, there could be no recovery by the plaintiffs. That use of land for a street which constitutes a dedication, was carefully explained to the jury. They were told that it was a question of intention; if the intention to dedicate existed, it would become effective without reference to the length of time the way might be used, but if there was no intention to dedicate, the user would not take effect as a dedication, no matter how long it was continued. The jury was also instructed, that a mere permissive use by the public of a piece of ground left open by the owner in front of his property, and used by him in his own business and for his own convenience, was not a dedication to public use, and conferred no right upon the public as against the owner. And the jury was further instructed, that the question whether or not there was a dedication, in this case, depended upon the [305] facts in evidence as to the opening of' the land, the character of its use by the public, the character of the property, the nature of the land and its surroundings, and all the other circumstances in the case, and if they found that there was an intention to dedicate on the part of the owner, they would be warranted in finding that there was an actual dedication, and in that event their verdict should be in favor of the defendant. We fail to find any error in these instructions; on tbe contrary, they are in precise accordance with the whole current of authorities upon this subject. Complaint is made in the first four assignments of error, that the court did not give adequate effect to the theory of an adverse use, for twenty-one years, of the road by the public, and that the jury were misled by the charge and answers, because the court did not distinctly say that if the use of the road by the public was adverse, and continued for twenty-one years, it would give a conclusive right to the public. It would be a sufficient answer to say that the case was tried upon the theory of a dedication, and that this is apparent from the points of the defendant, as well as from the points of the plaintiffs. The attention of the court was not called by any point to the effect of an adverse user, nor to the proposition that an actual user by the public for twenty-one years would, of itself alone, be proof of an adverse user. The court could not be convicted of error for omitting to say what it was not asked to say. But the court did say that there was a difference between the acquisition of a private right of way over the land of an owner by twenty-one years’ continuous adverse use of the way by another, and the acquisition of such a right by the public founded upon a dedication of the land to public use; that, in the former case, a conclusive presumption of a grant arose, and in the latter, the mere fact of user was not sufficient to establish a dedication, but there must be farther proof, indicating an intention to dedicate. We think this was quite correct. In Dillon on Mun. Corp., § 500, where the very precise question is discussed, the writer says: “ But where there is no other evidence against the owner to support the dedication but the mere fact of such user, so that the right claimed by the public is purely prescriptive, it is essential, to maintain it, that the user or enjoyment should be adverse; that it was with a claim of [306] right, and uninterrupted and exclusive for the requisite length ■of time.” Our attention has not been called to any evidence in the present case, nor have we discovered any, that the user of the public was made with a claim of right, nor that it was ■ exclusive; on the contrary, the evidence was emphatic and uncontradicted that the owners of the Weiss property were in the constant habit of using the ground in front of their works for their own purposes. The evidence seems to present a case of a permissive use by the public of the ground in question, concurrently with the use by the owner, and this has uniformly been held by this court as insufficient to create an adverse right ■in the public by way of dedication of the owner. ■ We do not think it necessary to repeat the reasoning of Chief Justice Gibson in the case of Gowen v. Phila. Exchange Co., 5 W. & S. 142, but only to say that we regard it as entirely conclusive, not only as establishing the right of an owner to make a limited dedication in favor of the public, resumable at his mere pleasure, but also to grant a permissive use by the public for all purposes of passage in front of his land, jointly with himself, without in any degree impairing his right subsequently at any time to terminate such privilege. In the recent case of Griffin’s App., 109 Pa. 150, the same doctrine was repeated and enforced, and we have no disposition to qualify the law as stated in that and other cases. The instructions of the learned court below were in exact conformity with these decisions. It is unnecessary also to refer to the cases in which it is ■held that, even where private rights of way are claimed by adverse user, a permissive use, if shown by the testimony, is destructive of the claim. The case of Commonwealth v. Cole, 26 Pa. 187, has no application to this case. No question of dedication arose or was considered. The road in question had been used as a public road for more than twenty-one years, and had been kept in repair at the expense of the township for several years. The proceeding was a prosecution for breaking down a fence across the road, and it was held that the case did not come within the statute imposing a penalty for such an act. What was said in the opinion as to use of ground by the public for a highway for twenty-one years was obiter dictum, and must in any event be held to have been said with reference to the facts of that case. [307] The fifth' and sixth assignments of error are without merit, and are dismissed. As to the seventh asssignment, it is obvious that the act of 1883, amending the general borough law of 1851, P. L. 320,. relates only to the subject of interest after adjudication. The question of interest as a part of the damages for the taking, is not in any way provided for by the act. We have so often held that interest may be allowed from the time of the taking of land for public use by way of damages, and that even a positive direction to allow interest is not error, that we cannot consider it an open question now. In Del. etc. R. Co. v. Burson, 61 Pa. 369, we said: “ Nor was there error in charging the jury to allow interest. If the plaintiff was entitled to compensation by reason of her property being taken at a particular time, she was certainly entitled to interest as a compensation for its wrongful detention.” See also Allegheny v. Campbell, 107 Pa. 530. In this case, the court directed the jury that if they found for the plaintiffs they should allow interest from October 10,1887, the date when the report of viewers was filed. As the land of the plaintiffs was taken before that date, there was no harm to the defendant in fixing that time as the period when interest should commence. We do not think the filing of the report had anything to do with this subject, but it was no injury to the defendant to give such an instruction. Judgment affirmed.