City of Wilkes-Barre's Appeal , 100 Pa. 313 ( 1882 )

Mr. Justice Paxson

delivered the opinion of the court, May 1st 1882.

The learned master, after a careful consideration of this case, came to the conclusion that the complainants’ bill should be dismissed, and so reported to the court. Upon execeptions filed the court reversed the master and made the injunction perpetual.

The bill was filed to restrain the city of Wilkes-Barre, and the street commissioners thereof from removing certain posts which the city alleged were in the public highway, but which the complainant contended were outside the highway and within the lines of his own property.

There was this question of fact in the case and nothing else.

The learned master found :

1st. That the locus in quo was within the bounds of the public highway as laid out by a jury of viewers duly appointed for that purpose by the court of quarter sessions in 1844, and duly confirmed at November sessions of that year.

2d. That said road up to the limits claimed on behalf of the city, was traveled and used by the public as a highway for a period of more than twenty-one years.

There was ample evidence to sustain each of these findings. The court below ignored the first finding, and held that there was no evidence of a dedication by the complainant of the land in question. There certainly was no dedication, but I am unable to see how any such question is raised in the case. The master does not find the land was- dedicated, but that it was lawfully taken under and by virtue of proceedings in the quarter sessions.

The court below sustained the master’s finding upon the second proposition, but held as a matter of law, that where the owner of private property bordering upon a public highway, leaves a portion of it open for his own accommodation, and not that of the public, there is in such case no dedication to public use, and the possession of such property may be resumed by the owner at pleasure. Gowan v. The Philadelphia Exchange Company, 5 W. & S. 141, and Duncan v. Hanbest, 2 Brewster 362, were cited in support of this proposition. There was no evidence that the locus in quo was left open by the owner for his own accommodation, or that he used it in any manner than as a public highway. The authorities referred to have no application.

No question was raised to the jurisdiction and we will not therefore discuss it further than to say that in reversing the decree we do not decide that a bill in equity was the proper form of proceeding.

The decree is reversed and the bill dismissed at the costs of the appellee.