Walter L. Hill, Jr., Joseph C. Kreder, Harris, Warren, Hill & Henkelman, Scranton, for appellant.
S. U. Colbassani, Scranton, for appellee.
Before Rhodes, P. J., and Ross, Gunther, Wright, Woodside, and Ervin, Jj.
[ 175 Pa. Super. Page 340]
This is an appeal by Theodore Mynyk from an order of the court below giving its consent and approval to a resolution adopted by the supervisors of Ransom Township, a township of the second class, accepting the dedication of Watzel Avenue as a public highway. The petition was presented in accordance with Section 1147 of 'The Second Class Township Code', 1947, July 10, P.L. 1481; 53 P.S. § 19093-1147. On November 19, 1886 John Watzel, being the owner of a tract of land, recorded a plan dividing his land into lots and streets. Thereafter Watzel sold to various purchasers lots abutting on Watzel Avenue, numbered in accordance with and referring to said plan. Watzel Avenue was opened for about three-quarters of its length and has been used as a public road for many years. The remaining 450 feet of Watzel Avenue was never opened and it is this portion of the avenue, as shown on the plan, that the township now seeks to accept and open. The unopened portion of Watzel Avenue, together with the lots abutting thereon, has been occupied as a single farm by the appellant and his predecessors in title at least since the 1890's. Although the statute makes no provision for notice, objection or hearing, counsel for the township notified appellant of the proposed petition and appellant, by his counsel, objected to the approval of the petition, contending that any public right by
[ 175 Pa. Super. Page 341]
virtue of the dedication of 1886 was long since gone by reason of the Act of 1889, May 9, P.L. 173, 36 P.S. § 1961, infra.
The lower court said that appellant's objection should not be litigated on an application for consent to accept the dedicated street.
We are in accord that the action of the lower court was in error. The Act of 1889 is applicable to this situation. What Mr. Justice Fell, in Quicksall v. City of Philadelphia, 177 Pa. 301 at page 304, 35 A. 609, at page 609, so well said, applies to this case:
'The dedication by the plaintiffs' grantors, in 1848, operated as a relinquishment of all claims for damages for the use of the land within the lines of the streets for street purposes; and no claim for damages can be sustained unless by reason of the act of May 9, 1889 (P.L. 173). The language of the act is: 'That any street, lane or alley laid out by any person or persons in any village or town plot or plan of lots on lands owned by such person or persons, in case the same has not been opened to, or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened without the consent of the owner or owners of the land on which the same has been, or shall be, laid out.' The purpose of the act is to relieve land upon which streets have been laid out by the owner, but not opened or used for 21 years, from the servitude imposed. To what extent it may affect the rights of those who by purchase of lots within the tract, have acquired the right of the use of all the streets marked on the plan, we need not now inquire. We have before us only the question of the right of the municipality to open the streets without compensation by reason of the dedication in 1848. As against this right, the act establishes a limitation of time where none before existed. The
[ 175 Pa. Super. Page 342]
streets were laid out 44 years before the commencement of these proceedings. They have not been opened to or used by the public. During the whole of this time the beds of the streets have been in the possession of the abutting owners, and used by them for the purpose of quarrying stone. No possession or use was claimed by others. The case, we think, comes within the meaning of the ...