In re Opening of Pearl Street

• Decision Date: 01 February 1886
• Citation: 5 A. 430,111 Pa. 565
• Parties: In re Opening of Pearl Street
• Court: Pennsylvania Supreme Court

5 A. 430

111 Pa. 565

In re Opening of Pearl Street

Supreme Court of Pennsylvania

February 1, 1886

Argued January 22, 1886.

Certiorari to the Court of Quarter Sessions of Philadelphia county: Of January Term, 1885, No. 351.

The record showed the following: May 23d, 1883, on petition, the court appointed a jury of six to view and report upon the propriety of opening Pearl street. This jury qualified proceeded to perform their duties, and reported to the court February 21st, 1884, that "in their judgment the state of improvements in the neighborhood, as well as the convenience of adjacent properties, make it necessary and proper that the said Pearl street should now be opened upon the lines laid down upon the city plan."

It was alleged and argued before the jury that Pearl street, between Thirty-fourth and Thirty-fifth streets, had been dedicated to public use, and therefore no damages should be awarded to those who now claimed the land, viz., the estate of Robert Steen, William Sellers et al.

The jury found and reported to court --

1. Pearl street is laid out upon the confirmed plans of the city of Philadelphia, thirty feet wide between Thirty-fourth and Thirty-fifth streets, as laid out upon the plan hereto annexed.

2. By deed, dated July 17, 1856, in Deed Book R. D. W., No. 88 page 149, &c., Charles Ingersoll et al., trustees of the one part, granted and conveyed to Richard Smethurst of the other part, a lot or piece of ground described, inter alia: "thence north along the west side of Thirty-fourth street, including a street, thirty feet in width, extending westward from Thirty-third to Thirty-fifth street."

3. Pearl street is identical in width and location with the thirty feet street referred to in the foregoing deed of conveyance.

4. By deed, dated May 6th, 1859, duly recorded, Richard Smethurst and wife granted to Robert Steen a portion of said lot, a piece of ground, described as follows: "Beginning at the southeast corner of Baring street and Thirty-fifth street, thence extending southward on a line parallel with Thirty-fourth street, one hundred and ninety-three feet to the middle of a certain thirty feet wide street extending from Thirty-third to Thirty-fifth streets, thence westward along the middle of the said thirty feet wide street one hundred and ninety feet ten and three eighth inches to the east side of Thirty-fifth street, and thence northward along the east side of said Thirty-fifth street one hundred and ninety-three feet six and one eighth inches, to the place of beginning.

5. In the year 1860 the late Robert Steen improved the property described in the above deed by erecting dwelling houses on the Baring street front, and also two houses known as twin houses Nos. 315 and 317 N. Thirty-fifth street, fronting on said Thirty-fifth street, and so arranged with reference to the line of Pearl street, that the front on Thirty-fifth street, when Pearl street is open, will be, for No. 315 N. Thirty-fifth street, thirty feet two and three eighth inches, and for 317 N. Thirty-fifth street, thirty feet. Since the houses have been built there has always been maintained by the said Steen or his estate a fence on the middle line of Pearl street, extending to the east line of his property, and that portion of the bed of Pearl street fifteen feet wide has been used as a part of the side yard of premises 315 N. Thirty-fifth street.

6. By a deed, dated June 14th, 1866, recorded June 19th, 1866, in Deed Book L. R. B. No. 188, page 442, Richard Smethurst and wife conveyed to William Sellers and John Sellers, Jr., all that certain lot or piece of ground in the Twenty-fourth ward of the city of Philadelphia, beginning at the northeast corner of Powelton avenue (formerly called Callowhill street) as now opened of the width of eighty feet, and Thirty-fifth street, thence extending eastward along the north side of said Powelton avenue four hundred and thirteen feet eleven and seven eighth inches to the west side of Thirty-fourth street, thence northward along the east side of said Thirty-fourth street (including a street thirty feet in width, extending westward from Thirty-third to Thirty-fifth streets on a line parallel with Powelton avenue, the southernmost line of which thirty feet wide street is at the distance of one hundred and seventy-eight feet north of said Powelton avenue) three hundred and eighty-six feet to the south side of Baring street, thence westward along the south side of said Baring street two hundred feet, thence southward parallel with said Thirty-fourth street by ground now or late of Robert Steen, one hundred and ninety-three feet to the middle of said thirty feet wide street; thence westward along the middle of said thirty feet wide street one hundred and ninety-nine feet ten and three eighths inches to the east side of said Thirty-fifth street; thence south along the same one hundred and ninety-three feet six and one eighth inches to the place of beginning (being part of a large lot of ground which Charles Ingersoll et al., trustees, granted and conveyed unto the said Richard Smethurst in fee), together with all and singular the ways, streets, alleys, passages, etc., etc.

7. All of the land covered by the last mentioned conveyance has been subdivided and by mesne conveyances granted and conveyed to the several registered owners whose names appear on their respective subdivisions in the plan hereto annexed. The land south between Powelton avenue and Pearl street is vacant and unimproved. The Baring street fronts are improved with dwelling houses from Thirty-fourth to Thirty-fifth streets.

8. The jury, under the facts herebefore stated, have not recognized any dedication of Pearl street, because they found none, certainly not previous to the Steen title; and believing that they have the power to inquire as to the damages before determining the primary question of opening the street, they have accordingly covered the entire question, rather than to subject the city to the expense of another jury, which might be asked for that purpose.

They therefore assessed and reported damages to be paid to the sureties of the Steen estate and to the other property-holders.

The city of Philadelphia excepted to the report of Viewers, and filed the following returns:

1. Because by deed, dated July 17th, 1858, recorded in Deed Book R. D. W., No. 88, page 149, &c., Charles Ingersoll et al., trustees, &c., granted and conveyed to Richard Smethurst (grantor of the late Robert Steen, now deceased), the land situate between and bounded by Callowhill, Baring, Thirty-fourth and Thirty-fifth streets, describing by metes and bounds "a street thirty feet in width, extending westward from Thirty-third street to Thirty-fifth street on a line parallel with said Callowhill street (the southernmost side of said thirty feet wide street is at the distance of 178 feet north of said Callowhill street), being identical with Pearl street, and the said street was thereby dedicated to public use.

2. Because the estate of Robert Steen, deceased, holds title to the land for the taking of which damages have been awarded, subject to the public right of way over said thirty feet wide street from Thirty-third to Thirty-fifth streets.

William Sellers, John Sellers, and other property owners on this line of Pearl street, also excepted, as follows:

1. To so much of the report of said jury as relates to the consideration and determination by the jury of the question of damages for the opening of the said street and apportionment of benefits by reason of such opening.

2. To so much of the report of said jury as finds that the owners of the property, late of Robert Steen, deceased, will sustain damages to the net amount of $ 1,711.

3. To so much of the finding of said jury as awards the said sum of $ 1,711 to the trustees of the estate of said Robert Steen,...