Paul v. Carver
| Decision Date | 01 March 1855 |
| Citation | 24 Pa. 207 |
| Parties | Paul versus Carver. |
| Court | Pennsylvania Supreme Court |
G. W. Biddle, for plaintiff in error.—The direction of Lownes's will as to the laying out of the street, was a dedication of it to the public: 4 Harris 79, Penny Pot Landing. But Tidmarsh street was laid out in 1827, in the usual manner, and the answer so alleges. The question then is whether, after a highway has been vacated, owners of property adjacent have a right to require it to be kept open. The legislature may modify, abridge, or enlarge a right of way: 6 Whar. 25-41-5; 10 Barr. 135. The constitutional provision as to taking private property, does not extend to property injured or destroyed: 14 Ser & R. 71-83; 6 Whar. 25-45; 8 W. & Ser. 85; 6 Harris 187, 189, 90.
The answer, alleging the street to be a public highway, is to be taken as true: Story's Eg. § 87; 2 Dan. Ch. 386.
It was contended that the conveyance of land adjacent to a street does not pass a title to any part of the soil of the street: Union Society v. Robinson, 5 Whar. 18; and COULTER, J., in 10 Barr 135, Bellinger v. The same society.
The complainant did not in his bill allege title to any part of the soil of the street. If he had such title he might maintain ejectment, and a Court of Equity is to be resorted to only when an adequate remedy cannot be afforded by a Court of law: Mitford's Eq. Pl. 111; Story, § 32-3.
The decree was inconsistent in dismissing the bill as to Selfridge, who had actually occupied a portion of the southern half of the street; and, in enjoining Paul against thereafter putting any obstruction in the northern half of it.
Price and Lex, for appellee.—The right of way along a street in the owner of premises fronting thereon, is a legal vested right: 4 Harris 89. An Act of the legislature vacating it is unconstitutional: 5 W. & Ser. 171, Norman v. Heist; 2 Barr 24; 6 Barr 91, Brown v. Hummel; 7 Harris 333, Hampton v. Commonwealth; except it be with the consent of the parties interested.
Irreparable injury to real estate may be restrained by injunction: 2 Story's Eq. 929.
It was alleged that the question of title to the soil of a vacated street was not before the Court; but if it were, Carver, as the owner of the ground along the north side of the street, was entitled to the soil to the middle of the street, viz., to the northern half of the street: see an elaborate opinion of STROUD, J., in the case of Ball v. Ball, 9 Pa. Law Journ. 499. Carver is adjoining owner within the intent of the Act of 1849, and the principle of the common law. Carver's title relates back to the date of the mortgage by Perry, viz., October 15, 1836: McCall v. Lenox, 9 Ser. & R. 302; 4 Ser. & R. 146; 4 Harris 179, Groff v. Levan. The sale in December, 1852, to Carver, under the mortgage, overruled the sale to Blair, under whom Paul claimed, as was decided in relation to this property in the case of Perry v. Brinton, 1 Harris 202, declaring that the lien of a mortgage, which is the first encumbrance on the premises, is not destroyed by a sheriff's sale under a judgment for taxes, subsequently assessed. See Act of 1830, relative to the lien of mortgages. Perry mortgaged all the ground conveyed to him by Mrs. Brinton, and Carver's purchase at sheriff's sale in 1852, under the mortgage, invested him with Perry's right at the time of mortgage, undiminished by the sale for taxes in 1848, which sale was subject to the mortgage. The commissioners had no right to encumber Tidmarsh street with their claim for taxes, pipes, &c. Act of 12th April, 1828 (Acts p. 322).
The owner of certain land in Moyamensing directed, in his will devising it, that a fifty foot street should be laid out through a part of it, either by his heirs or the public. It was afterwards laid out by the public and called Tidmarsh street. A subsequent Act of the legislature vacated Tidmarsh street, and the defendants, who are owners of lots adjoining it, claim the right to build upon and occupy the soil ad medium filum viæ. The plaintiff asserts that this is an injury to him, because his property cannot be conveniently reached unless that street be kept open and unobstructed.
It is the general rule of law, well established by authority and founded in true policy, that a...
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