Stearns Co. v. Hewes
| Decision Date | 26 February 1917 |
| Docket Number | 328 |
| Citation | 100 A. 1054,256 Pa. 577 |
| Parties | Stearns Company et al., Appellants, v. Hewes |
| Court | Pennsylvania Supreme Court |
Argued January 17, 1917
Appeal, No. 328, Jan. T., 1916, by plaintiffs, from decree of C.P. Erie Co., Sept. T., 1916, No. 13, dismissing bill in equity for an injunction, in case of Stearns Company, Fred J Miller, G. Daniel Baldwin, Robert W. Lawrie, Martin C. Mayer Henry E. Mayer, James Ross Mayer and Joseph G. Mayer; Martin C. Mayer, Henry E. Mayer, James Ross Mayer and Joseph G. Mayer, Trustees under the last will and testament of Henry Mayer, Deceased, Charles J. Haller, Frank A. Haller, Edward W. Haller, Cora E. Haller, Otto Haller, Leah O. Haller and Alma C. Haller, v. Charles P. Hewes. Affirmed.
Bill in equity for an injunction. Before WHITTELSEY, J.
The opinion of the Supreme Court states the facts.
The court on final hearing dismissed the bill. Plaintiffs appealed.
Error assigned was the decree of the court.
The decree is affirmed.
Frank Gunnison, of Gunnison, Fish, Gifford & Chapin, with him Marsh & Eaton and Monroe Echols, for appellants.
Frank J. Thomas, with him Clark Olds, for appellee.
Before BROWN, C.J., MESTREZAT, POTTER, STEWART and FRAZER, JJ.
We agree with the conclusion of the learned judge of the court below which he has amply vindicated in the opinion filed. This was a bill to restrain the defendant from obstructing or interfering with the use by the plaintiffs or the public of an alleged alley in the City of Erie. The facts have been found and stated by the learned court below, and we shall restate only those necessary for the consideration of this appeal.
In 1890, the City of Erie by a duly enacted ordinance caused a pavement to be constructed in the roadway of Twelfth street, in front of a piece of land abutting forty feet on the street and extending back therefrom the same width for a distance of three hundred and thirty feet, being the land involved in this litigation, at the expense of the owners of the property abutting on the street, and an assessment was made against the land for its proportion of the cost. The assessment was not paid, and a lien was filed against the land and unknown owner. A scire facias was issued on the lien, and the writ was served by publication according to law. Subsequently a judgment was entered in favor of the City of Erie against the land for want of an appearance and affidavit of defense. A levari facias was issued on the judgment, the land was sold by the sheriff to one Van Cleve, and a deed was duly acknowledged and delivered. Van Cleve's title was, by sundry conveyances, vested in Charles P. Hewes, the defendant in this suit.
Hewes brought an action of ejectment in 1912 against all the then owners of real estate abutting on the alley or land in question and the City of Erie. The plaintiffs in the present suit are the successors in title to the individual defendants in that action. Hewes filed an abstract of title setting forth, inter alia, title out of the Commonwealth and the ordinance and subsequent proceedings on the municipal lien, resulting in a sale to his predecessor in title. It is conceded by the plaintiffs in this bill that Hewes relied upon the title acquired by the sale on the municipal lien to recover in the action of ejectment. The defendants pleaded the general issue in that action and, as required by the Act of May 8, 1901, P.L. 142, filed an answer in which they averred that the owners in fee of a larger piece of land, known as the Out-Lot, of which the land in controversy here was a part, "dedicated the said land in dispute, . . . to the public, and to the owners of the remaining portions of said Out-Lot and others, as a public street, alley and highway, for the use of the public and said other owners as persons, their successors, heirs and assigns for use as a public street, alley or highway forever." The action was tried and resulted in a verdict for the defendants. The court made absolute plaintiff's rule for judgment non obstante veredicto. The defendants appealed to this court, and the judgment was affirmed: Hewes v. Miller, 254 Pa. 57.
The plaintiffs in the present suit, the successors in title to the individual defendants in the ejectment, filed this bill in which they averred, inter alia, that they were owners of lots on the east and west sides respectively of an alley or public highway; that the strip of land claimed as a highway was and for more than twenty-one years prior to laying the pavement on Twelfth street had been used and traveled by the public, the plaintiffs and their predecessors in title as a public highway and as a means of access to the premises of the plaintiffs by travel on foot and by vehicle that the said use of the same was open and notorious and apparent to everybody; that plaintiffs were advised by their counsel that the same had been dedicated to the public as a highway by the owners, and the public had accepted the dedication immediately after it was made. The bill prayed for an injunction restraining the defendant from obstructing or interfering with the use of the right of way over and through the alley by the public or the plaintiffs. The defendant filed an answer admitting that the plaintiffs were the owners of the respective premises averred in the bill, but denied that the strip of land in question was a public highway or alley, and averred, inter alia, that it was the defendant's private property; that it was used by the plaintiffs' predecessors in title for a private raceway; that by proceedings upon the municipal lien it was adjudiciated by the court that the land was private property, and that...
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Stearns Co. v. Hewes
... 100 A. 1054256 Pa. 577 STEARNS CO. et al. v. HEWES. Supreme Court of Pennsylvania. Feb. 26, 1917. Appeal from Court of Common Pleas, Erie County. Bill in equity for an injunction by Stearns Company and others against Charles P. Hewes. From a decree dismissing the bill 100 A. 1055 on final ......