P., F. W. & C. Railway Co. v. Dunn

• Decision Date: 07 January 1868
• Citation: 56 Pa. 280
• Parties: The Pittsburg, Fort Wayne and Chicago Railway Company <I>versus</I> Dunn.
• Court: Pennsylvania Supreme Court

Page 280

56 Pa. 280

The Pittsburg, Fort Wayne and Chicago Railway Company versus Dunn.

Supreme Court of Pennsylvania.

November 12, 1867.

January 7, 1868.

November 12th 1867.

Before THOMPSON, STRONG, READ and AGNEW, JJ. WOODWARD, C. J., absent

Error to the District Court of Allegheny county: No. 27 to October and November Term 1867.

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J. A. Lowrie, for plaintiffs in error, cited Act of April 11th 1848, Pamph. L. 1849, pp. 754-762; Ohio Railroad Law February 24th 1848, § 15, p. 761; Commonwealth v. Cole, 2 Casey 187; Schenley v. Commonwealth, 12 Id. 29; Mercer v. P., Ft. W. & C. Railroad, Id. 99; Union Canal Co. v. Pinegrove Tp., 6 W. & S. 560; Gowen v. Phila. Exch. Co., 5 Id. 141.

J. M. Stoner, for defendant in error, referred to Schenley v. Commonwealth, 12 Casey 29; Mercer v. P. Ft. W. & Ch. Railroad, Id. 99; Commonwealth v. Cole, 2 Id. 187; Foundling Hospital, 11 East 375, note a; Jarvis v. Dean, 3 Bing. 447; Irwin v. Dixon, 9 How. 10; Woodyer v. Hadden, 5 Taunt. 125; Hunter v. Trustees, 6 Hill (N. Y.) 407; Union Canal Co. v. Pinegrove, 6 W. & S. 560; Stafford v. Coyney, 7 B. & C. 257; Gowen v. Phila. Exch., 5 W. & S. 141; 3 Kent's Comm. 452 n.

The opinion of the court was delivered, January 7th 1868, by READ, J.

In The Queen v. Inhabitants of Dukinfield, 32 L. J. N. S., Mag. Cases, p. 230, Mr. Justice Blackburn said: "The common law enabled any owner to dedicate land as a highway, and then at common law followed the consequence that it became repairable by the inhabitants of the parish or district." In Re Milford, 4 Barr 305, the court said: "The authority of the owner of a town plot to dedicate his ground to public use is as effective as that of the legislature;" and in The Borough of Birmingham v. Anderson, 12 Wright 258, it is said: "It has been the practice in this country in laying out towns to have the plat surveyed and a plan made in accordance with the survey designating the streets, public squares and open spaces left for commons, wharves or any other public purpose. Those streets, squares and open spaces are thus dedicated to the public by the proprietors of the soil, whether they be the state or private individuals. When a town is situated on a navigable river, it is generally the custom to leave an open space between the line of the lots next the river and the river itself. This was done by William Penn in 1682 in the original plan of the city of Philadelphia on the Delaware front, and he called it a top-common, and in 1784, his descendants, the former proprietaries, in their plan of Pittsburg, adopted a similar measure of leaving such an open space, and they called it Water Street. In 1789 the proprietors of the land on which the city of Cincinnati is built pursued the same policy, and in their plan the ground lying between Front Street and the Ohio river was set apart as a common for the use and benefit of the town for ever." In Commonwealth v. Cole, 2 Casey 189, Knox, J., speaking of a road in Carbon county, said: "To prevent any future controversy, it is proper for us to add that the use of the ground by the public as a highway for more than twenty-one years made it a public road just as effectually as though it had been originally laid out and opened by the proper authorities." In Schenley v. Commonwealth, 12 Casey 29, a peculiarly strong case, my brother Strong said (p. 59): "Wherever there is an actual giving of land for a public highway accepted by the public, though there be no deed, the dedication is complete."

The acceptance there was the user by the public.

Eight years is quite a sufficient time for presuming a dedication of the way to the public. In a great case, which was much contested, six years was held sufficient: 11 East 375; and in Jarvis v. Dean, 3 Bing. 447, Chief Justice Best said: "As it had been used for four or five years as a public road, the jury were warranted in presuming that it was used with the full assent of the owners of the soil."

"If the act of dedication be unequivocal, it may take place immediately:" Woodyer v. Hadden, 5 Taunt. 126, per Chambre, J.; and "It may be established by acts unequivocal in their character on the part of the owner and the public, although occurring on a single day:" Hunter v. Trustees of Sandy Hill, 6 Hill 414.

The defendants in this case say the principal question is whether the road leading from the Beaver Road to the State Road and to the Remington Station, was a public or a private one, the company asserting it was a private road, and that the crossing over their railroad was a private one which should be kept in repair by the owner thereof.

The plaintiff alleged and proved that the road was laid out by him, the owner of the land, and opened to public use as long ago as 1855 or 1856, as testified to by the witnesses, and fenced on one side all the way and on...