Bornot v. Bonschur , 202 Pa. 463 ( 1902 )

Opinion by

Mr. Justice Mitchell,

When Estlack in 1829 drew back his property line six feet from the then established north line of Chestnut street, ho dedicated or in his own words “ threw out ” that space for the public use as a part of Chestnut street and it came under the jurisdiction of councils for all future uses public or otherwise as they might determine. As found by the. learned trial judge, there is no covenant in Estlack’s deeds to his vendees with respect to this space, no reservation to himself or them of any rights therein, and no grant of any easement of light or air or way different from those of the general public, created by the dedication to public use. The deeds merely refer to Chestnut street “ enlarged as aforesaid ” as the southern boundary of the lots conveyed. The neighborhood at that time was semirural. When the city of Philadelphia was laid out it was expected that the settlements would gather first along the two rivers, and the streets were accordingly numbered westward from the Delaware and eastward from the Schuylkill, the latter being distinguished as Schuylkill Front, Schuylkill Second, etc., until they met at Broad. Sixteenth street was known and described in Estlack’s deeds as Schuylkill Seventh, and so continued until 1858: Ordinance of November 28, 1853. The main development of the city was westward from the Delaware, with a subordinate and much slower growth eastward from the Schuylkill. Between these two sections was an intermediate region, larger than either, which was but sparsely built upon in 1829. When Stephen Girard made his will in 1830, his direction (after-wards changed by the codicil), was that his college should be built on the square bounded by Chestnut, Market, Eleventh and Twelfth streets, then considered sufficiently remote from the business part of the city to be an appropriate location for a walled and somewhat secluded institution. Estlack’s property at Schuylkill Seventh street was, as already said, at least semirural, and each owner built very much as he chose. The six feet additional width thrown into Chestnut street was probably considered as an individual preference or whim of Estlack’s not of enough importance to require any special covenant or easement in favor of the purchasers, nor formal action of acceptance or rejection by the city. Whatever the reason, however, it is clear that the deeds gave the purchasers no special rights in this six-feet strip, and the question before us in this ease concerns only the city’s action in regard to it.

It may be safely assumed from the evidence that the city impliedly accepted the dedication, though no express action concerning it took place until 1881. Chestnut street towards the middle of the nineteenth century, by the accident or caprice of business became the most important street running east and west in the center of the city. The convenience, almost necessity of increased width, has been greatly felt and from time to time has led to efforts to secure it, but the expense has always stood in the way. The most important of these was the Act of April 28, 1870, P. L. 1291, which established the south line of the street at 539 feet south of the south line of Market street. This was a legislative widening of the street five feet, but provided that it should not interfere with any buildings then erected so that as said in Re Chestnut Street, 118 Pa. 593, it may take 100 years to produce the practical result desired.

On March 21, 1881, the city passed an ordinance reciting that “ whereas a voluntary recession has been made by many of the owners of property on the north side of Chestnut street between Fifteenth and Sixteenth streets, with a view to widening that street, and it being desirable that the said widening shall be legally established,” therefore, be it ordained “that the department of surveys be and is hereby authorized to place Chestnut street upon the city plan between Fifteenth and Sixteenth streets as widened six feet upon the north side thereof, in such manner that the north line may conform to the line of houses now built, and be thirty-one feet north of the center line of said street,” etc. And on March 31, 1884, another ordinance “ To provide for the widening of Chestnut street on the city plan,” ordained, “that the department of surveys be and is hereby authorized to revise the city plan so as to make Chestnut street from the Delaware river to the Schuylkill river of the width of sixty feet, widening equally on both sides from the center line.”

The ordinance of 1881 was a formal recognition by the municipality of the increased width of the street by the six feet strip “ thrown out ” by Estlack. Whether any other owners bad also receded, or to what extent does not appear. Nor does it appear that any steps were taken to enforce recession to the new line by any of the owners who had not already receded voluntarily. In this situation the ordinance of 1884 was passed and its purpose appears to have been to establish a new and uniform line for the north side of the street from the Delaware to the Schuylkill. This as already noted had been done by the act of 1870 for the south side saving pro tempore until alteration or reconstruction all then existing buildings. The ordinance contained the same saving clause, for while the new width was ordered to be put on the city plan, no direction was given to carry out the widening on the ground, but the purpose was limited by the provision of the 2d section that “ after the confirmation and establishment of said lines it shall not be lawful for any owner or builder to erect any new building or to rebuild or alter the front of any building now erected without making it recede so as to conform to the lines established for a width of sixty feet.” This was manifestly a compromise, as the act of 1870 had. been, between the desire to secure a greater width, and the inexpediency of incurring the expense of an immediate compulsory widening. The result was that existing conditions were not disturbed, but that as taste or necessity induced changes by owners, progress should be made step by step towards a street of greater and uniform width.

Consideration is undoubtedly due to the fact that the title of the ordinance is “ to provide for the widening of Chestnut street,” especially in view of the express recognition of the increased width between Fifteenth and Sixteenth streets so recently as in the ordinance of 1881. No doubt the widening was the main purpose, as it was the main effect. But the form of .the ordinance, as well as the close following of the act of 1870, indicate a view to uniformity as well as to increased width. The great majority of properties undoubtedly would have to recede, some more, some less, while some like the Estlack houses were already back of the new line. If the purpose had been to save existing lines in such cases, it would have been not only easy but almost imperative to say so explicitly, but instead of doing so the ordinance prescribed a uniform width of thirty feet from the old center line. As was said in the dissenting opinion, “ the direction is not that the city plan be revised so far as it indicates Chestnut street of a width less than sixty feet, but that it be revised so far as it comprises Chestnut street between the two rivers.” Whether an increased width in some places only would be advantageous or not is largely dependent on the circumstances. If a whole square were widened where business demanded, it would no doubt be to the general advantage of the property owners as well as the public, but if a few houses here and there receded while the majority came out to the line, not only would those houses thus put in an offset or recess be injuriously affected, but the street in its public aspect would have a serrated building line contrary to the general city plan. Whether, for example, the city’s interests or the properties themselves would be benefited or injured by a recession of one additional foot by the Estlack houses for a frontage of ninety feet in a square of four hundred, is a matter of opinion which councils may have desired to settle by this ordinance.

However that may be, the purpose and effect of the ordinance were to establish the legal width of the street at sixty feet. By necessary implication it superseded all previous ordinances on the same subject. The legal consequences followed, that as to all future alterations the properties within the thirty feet line from the center would be obliged to recede, and on the other hand those outside of the same line were released from previous restrictions by the consequent vacation of so much of the old street, and the restoration of it to the abutting properties. “ When in obedience to the authority and direction of councils a street is stricken off the city plan by the department, it has no longer any warrant for existence as a public street. There is no appeal or review by any judicial tribunal and nothing further required for a complete legal vacation:” Wetherill v. Penna. R. R. Co., 195 Pa. 156. When, therefore, the ordinance was carried out on the plan by the bureau of surveys, the space between the sixty feet lines became the legal Chestnut street to which all abutting properties were on the one hand bound, and on the other entitled to conform.

The city of Philadelphia has filed a brief, supplementary to the appellant’s, in which it is urged that the ordinance of 1881 was invalid by reason of certain provisions, and therefore was never carried out by the bureau of surveys. With the validity of the ordinance we are not concerned in this case, but there is no room for question as to the law. The entire authority and control over the subject are in councils, with no revisory power or independent discretion in the bureau of surveys: Wetherill v. Penna. R. R. Co., 195 Pa. 156. But the ordinances do not usually execute themselves. They direct what shall be done as in the case of the ordinance of 1884, by which the department is “ authorized to revise the city plan,” etc. Unless in some way, illegal or imperfect, obedience by the bureau can be compelled, but until the bureau has acted and put the new lines on the plan, the change is incomplete, and not fully effective. The usefulness if not necessity of completed action may be illustrated by the ordinance of 1881, which directs the department of surveys to place Chestnut street on the city plan between Fifteenth and Sixteenth streets “ as widened six feet upon the north side thereof in such manner that the north line may conform to the line of houses now built,” etc. Two of those houses have already been altered and at any time the owners of others may rebuild on a line further back, so that in a few years the line as established by the ordinance conforming to the line of houses then built, will be no longer visible and may become a matter of question. The laying down of the lines however by the bureau of surveys on the city plan not only completes the change but makes it fixed and certain by official evidence for all future uses.

It is proper to say this much on the general law of the subject to avoid misunderstanding of the effect of the decision. But in the view we have taken of the ordinance of 1884, the ordinance of 1881, and the question as to the action upon it by the board of surveys are immaterial.

Decree reversed with directions to dismiss the bill with costs.