Appeal of Ferguson

• Decision Date: 03 January 1888
• Docket Number: 32
• Citation: 117 Pa. 426,11 A. 885
• Parties: APPEAL OF JOHN S. FERGUSON AND WIFE
• Court: Pennsylvania Supreme Court

11 A. 885

117 Pa. 426

APPEAL OF JOHN S. FERGUSON AND WIFE

No. 32

Supreme Court of Pennsylvania

January 3, 1888

Argued February 21, 1887

FROM THE DECREE OF THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY IN EQUITY.

No. 32 July Term 1886, Sup. Ct.; court below, No. 5 April Term 1883 C.P., in equity.

This was a proceeding by a bill in equity filed on March 20, 1883 by F. W. Mason and Sarah E. Mason, his wife, in right of said wife, against John Ferguson and Frances E. Ferguson, his wife.

The bill averred that on July 1, 1869, Joseph T. Fellows became seized in fee of a parcel of land in the Fifth ward of the city of Scranton, containing eight acres more or less; that he caused said land to be laid out and plotted into building lots and into streets and alleys, and that among the streets laid out was one fifty feet wide, designated as Rock street: That on November 30, 1871, he conveyed lot marked No. 2 on said plan by general warranty deed to Mrs. Sarah E. Mason, the plaintiff, in said deed describing said lot as "beginning at a corner on the west side of Main street at the intersection of Rock street, thence along said Rock street north," etc.; that on the same day he conveyed lot No. 4 fronting on Main street to Mrs. Mary H. Mott, and lots Nos. 4 and 5 fronting on Sixth avenue to Mrs. Kate Gibbs, and, on November 30, 1872, lot No. 3, fronting on Main street, to Mrs. Jane Wells: That on the said plan there was plotted and laid out for public use an alley twenty-five feet wide, running in the rear of said lots across Rock street and parallel with Main street: That about March 15, 1878, said J. T. Fellows conveyed lot No. 1 on said plan to Frances E. Fellows, then his wife, now Frances E. Ferguson, wife of John E. Ferguson, without mentioning or bounding the same on Rock street, or designating courses and distances; that said Frances E. Ferguson, defendant, claims to own all the land embraced in Rock street from Main street to said alley, and is about to appropriate it to her own use in the erection of a dwelling thereon which would close up Rock street: That plaintiff, Sarah E. Mason, has built a dwelling on her said lot No. 2 at great cost, with the view of the use of Rock street therewith, and that the closing of said street by the building of a dwelling thereon by the defendant, would be a great damage and an irreparable injury to the plaintiff. The prayer was for a preliminary and perpetual injunction, and for general relief.

The answer averred that said J. T. Fellows was not seized in fee of the said parcel of eight acres, but the title thereto was in John Heermans, succeeded by W. W. Jessup, in trust for said J. T. Fellows; that the defendants had no knowledge but were informed and believed that said J. T. Fellows did not lay out and plot in building lots the said parcel, nor did he lay out and plot a street to be known as Rock street, and that such a street was never appropriated, opened, accepted or used as a street by any one; that defendant, Frances E. Fergurson, owns the land in dispute called Rock street, and had purchased it of J. T. Fellows for a valuable consideration without notice or knowledge of any kind that there was any dedication of it for the purpose of a street or that any such claim had been made by the plaintiffs or any other person; that said Sarah E. Mason had not built the dwelling as claimed by her, but it was built by said J. T. Fellows and paid for by him; that a court of equity had no jurisdiction of the matter set forth in the bill, and prayed to be dismissed.

Issue being joined, on November 7, 1883, Mr. Geo. S. Horn was appointed master and examiner, in the hearing before whom the following material facts appeared:

In October or November, 1871, Joseph Turvey Fellows, being the owner of about eight acres of land in a populous part of the city of Scranton, laid the same out into some twenty-six or twenty-seven city lots according to a map or plan which he caused to be made of them. The land thus divided up was bounded easterly in one part by Main street, westerly by Hyde Park avenue, northerly by the Hampton road, otherwise called Sixth avenue, and Southerly by Fellows avenue. Upon this plot a street designated as Rock street was laid out fifty feet wide extending from Main street to Hyde Park avenue, with an alley intersecting this, running through from the Hampton road to Fellows avenue, and another alley running from the first alley northwesterly to Hyde Park avenue.

This plot was somewhat as follows:

[SEE ILLUSTRATION IN ORIGINAL]

On November 30, 1871, Mr. Fellows, who was then a widower, executed and delivered to his daughter, Mrs. Sarah E. Mason, for the consideration of one dollar, actually paid, a deed in fee for one of the lots upon this plot, bounded and described in said deed as follows: "Beginning at the corner on the west side of main street at the intersection of Rock street, thence along said Rock street north . . . to an alley, thence along said alley south . . . to a corner of lot number three, thence along line of said lot south . . . to said Main street, thence along said street north . . . to place of beginning, it being lot No. 2, on map of lots laid out by the said Joseph T. Fellows in said city [Scranton] and part of same as conveyed by Joseph Fellows to said Joseph T. Fellows by deed," etc.

This conveyance was intended as a gift to Mrs. Mason according to a selection made by her from this plot of lots, and corresponding deeds of gift were at the same time executed and delivered to the three other daughters of the grantor, for lots selected by them also upon this plot. The deed of Mrs. Mason was duly recorded December 2, 1871. Subsequently Mrs. Mason went into possession of her lot, and some time in 1872 and 3, a house was built for her thereon in part by her father, Mr. Fellows, but mainly by her husband, F. W. Mason.

Rock street was never opened. As projected, it extended between Mrs. Mason's lot on the one side and Mr. Fellows' homestead on the other. The fence line between the two properties ran along the middle of the street, Mrs. Mason taking into her inclosure some 32 feet of the street in front and 18 to 20 feet in the rear. Her rear fence also extended across and fenced in part of the projected 20 feet alley, which ran from the Hampton road to Fellows avenue. While thus fenced in, the land covered by Rock street was used by the parties on either side as a yard and garden. Mrs. Mason had a coal shed upon it to which she obtained access through a gate and way across Mr. Fellows' land, and then through bars in the division fence, or along Mr. Fellows' side of the fence. On the other side, within the lines of the street, was a well from which water was drawn for use at Mr. Fellows' barn. There was also a pig-sty on it, and it was largely used as a barn-yard. At one time Mr. Fellows cultivated as a garden some portion of the street on Mrs. Mason's side.

This use and occupation of the land covered by the street, on either side, continued up to the time of Mr. Fellows' death in July, 1878.

Some time about 1873, Mr. Fellows had married the defendant who is now Mrs. Frances E. Ferguson, and on March 13, 1878, he conveyed to her for life for the consideration of $2,000, remainder to his son Edward A. Fellows in fee, the following described premises: "Beginning at a post and stones at the westerly angle of the intersection of Main street south . . . to line of lot of Elizabeth Mason, thence along the line of said Mason lot . . . to an alley, thence along said alley north . . . to Sixth avenue, thence along Sixth avenue south . . . to the place of beginning." The land thus described includes that portion of Rock street which adjoins Mrs. Mason's lot. On November 3, 1881, Mrs. Fellows purchased of Edward A. Fellows his estate in remainder.

J. T. Fellows died July 17, 1878. Soon afterwards Mrs. Mason being prevented from using the gate and way by which she had had access to her coal shed, moved back her coal shed and fence to the southerly side of Rock street, and took down a portion of the fence in front along Main street and in the rear along the alley, for the purpose of opening Rock street. Mrs. Ferguson, then Mrs. Fellows, resisted this, and Mrs. Mason was compelled to desist. Subsequently the councils of the city of Scranton were petitioned by Mrs. Mason to open Rock street, but without success. In the meantime Mrs. Fellows had opened the alley in the rear of her premises and extended it across Rock street, which she fenced on either side, and across the rear of Mrs. Mason's inclosure, and having taken possession of the land covered by Rock street, she and her present husband began to erect a dwelling house directly upon it. The plaintiffs, Mrs. Mason and her husband, thereupon, on March 20, 1883, filed this bill.

Finding upon the foregoing facts that the plaintiffs had the right to relief, and, upon the question raised by the answer as to the jurisdiction in equity, to grant it as prayed for, discussing the cases: Wiser's App., 9 W.N. 508; Maguire's App., 102 Pa. 120; Pillsworth v. Hopton, 6 Ves. 51; Storm v. Mann, 4 Johns. Ch. 21; Gardner v. Newburgh, 2 Johns. Ch. 165; Whitchurch v. Hide, 2 Atk. 391; Rhea v. Forsyth, 37 Pa. 506; North Penn. Coal Co. v. Snowden, 42 Pa. 490; Washburn's App., 105 Pa. 482; Lenninger v. Railroad Co., 41 Leg. Int. 386; Tillmes v. Marsh, 67 Pa. 507; Grubb's App., 90 Pa. 234; Haines's App., 73 Pa. 169; Scheetz's App., 35 Pa. 88; Stewart's App., 56 Pa. 413; Bitting's App., 105 Pa. 517; Hacke's App., 101 Pa. 245; Haugh's App. 102 Pa. 42; McCaffrey's App., 105 Pa. 257; King v. McCully, 38 Pa. 76; Commonwealth v. Railroad Co., 24 Pa. 159, the report of the master proceeded:

If the defendants have violated the rights of the...