Appeal, No. 176, Oct. T., 1959, from order of Court of Quarter Sessions of Philadelphia County, No. 13 of 1958, in the matter of the opening and change of grade of Warnock Street from Champlost Avenue to Spencer Street. Order affirmed.
LeRoy Comanor, for appellant.
Jacob J. Siegal, Deputy City Solicitor, with him David Berger, City Solicitor, for appellee.
Before Rhodes, P.j., Hirt, Wright, Woodside, Ervin, and Watkins, JJ. (gunther, J., absent).
[ 189 Pa. Super. Page 625]
The question involved in this appeal, as stated by the appellant, is: Does the mere formal acceptance of a deed of dedication of a street by a municipality without an acceptance by public user and/or opening of the street to public use, serve to avoid the operation of the Act of 1889, May 9, P.L. 173, No. 192, § 1, 36 PS § 1961?
In 1889 the Fern Rock Land Company (a predecessor in appellant's chain of title to the land affected) was in the process of developing the general area within which Warnock Street from Champlost Avenue to Spencer Street lies.
[ 189 Pa. Super. Page 626]
The city enacted the ordinance of March 22, 1889, which provided: "That the Department of Public Works be, and is hereby authorized to revise the grade of Spencer avenue between Sixth and Twelfth streets, and that of the adjacent streets and avenues affected thereby, in the Twenty-second ward: PROVIDED That the Fern Rock Land Company first dedicate the bed of Spencer Avenue so far as it lies within its property and release the City from any claim for damage to its property by reason of said change of grade."
Pursuant to the conditions of the ordinance, the Fern Rock Land Company executed a deed, dated April 10, 1889, which, inter alia, dedicated to the city the bed of Warnock Street from Champlost Avenue to Spencer Street. The deed was delivered to the city, approved by the city solicitor, and formally accepted by the board of surveyors on behalf of the city on June 17, 1889, all of which was noted upon the cover page of the deed. The deed was then recorded in the office for the Recording of Deeds.
The deed provided, inter alia, for the grant of the bed of Warnock Street to the City of Philadelphia "forever for a public Street or Highway and for no other purpose but to the same extent and to the same effect as if the street had been opened by a Decree of the Court of Quarter Sessions for the County of Philadelphia upon proceedings had for that purpose under the Road Laws of the Commonwealth of Pennsylvania...."
Prior to the recording of the deed of dedication, Warnock Street had been confirmed on the city plans at an elevation which would place it, when it was physically developed, severly below the natural grade of the abutting ground. On May 18, 1955 the council enacted an ordinance authorizing the board of surveyors to ...