Philadelphia v. Hinkle , 64 Pa. Super. 495 ( 1916 )

Opinion by

Portee, J.,

This is a scire facias upon a municipal lien for paving Yenango street in the City of Philadelphia. The only objection to the claim set up by the defendant was that that portion of Yenango street plotted over defendant’s property was not at the time the paving was done a duly and regularly opened street or highway. There Avas a verdict and judgment in favor of the plaintiff in the court below and from that judgment the defendant appeals.

The opinion of the learned judge of the court below, in disposing of the motion of the defendant for judgment non obstante veredicto, which appears in this report, fully states the facts arid cites the decisions applicable thereto. We will, therefore, discuss only the leading question involved. Yenango street had long been used as a public street, the manner in which it came into existence is involved in obscurity. It first appeared upon the municipal records as a plotted street in 1844. There is no evidence of any municipal action with regard to this plotted street until 1895, when, under the authority of an ordinance previously passed, it was stricken from the city plan. Eleven years later, in 1906, the defendant acquired title to the property against which this lien was filed by deed from Lemuel A. White, which deed described the property as fronting on Yenango Street,which was not then on the city plan. In 1907 an ordinance was adopted by the councils of the city directing the board of surveyors to place upon the city plan......“Yenango street, of the width of fifty feet, as now physically open.” The defendant shortly afterward applied for and received from the city permits for the erection of certain buildings, which he described as fronting on Venango street. In 1912 the city caused the street to be paved, in accordance with the provisions of an ordinance which had been passed in 1911, authorizing such paving, and a lien was filed against, the property .of the defendant for its proportion of the cost of the work. There never was, at any time, a formal ordinance providing for the opening of Venango street. When the defendant took title the street had not, for .eleven years, been a plotted street on the city plan, the call in the deed under which defendant took title for a frontage upon Venango street, cannot, therefore, be held to be a call for a plotted but unopened street. This call was, therefore, as between the parties, an implied covenant that the street should be kept open: Shetter v. Welzel, 242 Pa. 358, but what was the then status of Venango , street, to which the deed referred? The answer' to this question is found in the following admission agreed upon by counsel at the trial in the court below: “It is admitted that the street, in accordance with the testimony of Mr. Gorham, has been physically open for fifty years and used by the public as a street.” The witness Gorham had distinctly testified that the public had never ceased to use the street even during the time it was stricken off the plan. This admission conclusively established the status of the street, as a street actually open and used by the public for fifty years. This explains the meaning of the call for the street in the deed under which defendant took title, it also explains the provisions of the ordinance of 1907, restoring' “Venango street, of the width of fifty feet as. now physically open” -to the city plan. It is well settled that a street which is by the abutting ‘ property owners left open for the use of the public as a street, and is accepted by the public and used as a public street, may become a public highway without formal action of the municipal authorities: P., F. W. & C. Railway Co. v. Dunn, 56 Pa. 280; Commonwealth v. Moorehead, 118 Pa. 344; Commonwealth v. Shoemaker, 14 Pa. Superior Ct. 194. There can in this case be no question that under the admitted facts the city was, after the restoration of the street to the city plan, in 1907, in view of the express provisions of the ordinance, bound to maintain the street as a public highway. The applications of the defendant for permits to erect buildings on Venango street were properly admitted in evidence, as showing a recognition by him of the existence of the street as then used. Under the undisputed evidence and the admissions of the' defendant at the trial, there can be no question that Venango street was an open, public highway. The specifications of error are overruled.

The judgment is affirmed.