Appeal, No. 69, April T., 1959, from decree of Court of Common Pleas of Westmoreland County, No. 2482, in equity, in case of Bartolo M. Travaglia et ux. v. Wilmer B. Weinel et ux. Decree affirmed.
Marquis M. Smith, for appellants.
Myron W. Lamproplos, with him Cassidy & Lamproplos, for appellees.
Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).
[ 191 Pa. Super. Page 324]
The only question presented by this appeal is whether the Act of May 9, 1889, P.L. 173, 36 PS § 1961, which provides 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....", terminated private easements
[ 191 Pa. Super. Page 325]
as well as public rights in Fourth Street in the Plan of Chambers.
The Plan of Chambers was laid out by the owners in May 1887, the survey and plan having been made by R. D. Wilson, Engineer, designating certain streets, avenues and alleys as well as the lots fronting thereon. The plaintiffs and defendants are owners of certain lots in the aforesaid Plan of Chambers which they acquired from their predecessors in title by deeds which described the lots and the streets upon which they abut, in accordance with and by reference to the aforesaid plan. The lot of the plaintiffs Travaglia is located on the southeast corner of Fourth Street and Chambers Avenue. Fourth Street runs in a northerly and southerly direction and Chambers Avenue runs in an easterly and westerly direction. The lot of plaintiff Gais is located on the southwest corner of Fourth Street and Chambers Avenue and the lots of the plaintiffs Deemer and Hartman are located on the southerly side of Chambers Avenue, west of Fourth Street. The lots of the defendants, the Weinels, are located on the northwesterly corner of Fourth Street and Chambers Avenue. On September 25, 1950 the defendants erected a fence across a portion of the ground which is indicated on the plan as Fourth Street and have refused entry on or through the portion shown as Fourth Street. The portion of Fourth Street which abuts the Weinel property had never been opened and used as a public highway nor was the offer to dedicate ever accepted by the township. The court below restrained the defendants from obstructing or interfering with the use by the plaintiffs of the easement of ingress and egress over Fourth Street as shown on the Plan of Chambers and directed the defendants to remove the fence which they had erected across Fourth Street. The defendants took this appeal.
[ 191 Pa. Super. Page 326]
We are in accord with the action taken by the court below, it being expressly ruled by the case of Rahn v. Hess, 378 Pa. 264, 271, 106 A.2d 461, wherein Mr. Justice CHIDSEY, speaking for the Court, said: "The only other issue presented for our consideration is whether the Act of 1889 terminated private easements as well as public rights in the street, as contended by the defendants. The precise question has never been passed upon by this Court, but we have recognized a clear distinction between the public right of passage over dedicated streets and the individual rights of property involved in such dedication. The latter are private contractual rights resulting as a legal consequence from the implied covenants under which the grantees purchased, and as such are not affected by the failure of the municipalities to act upon the dedication: See Chambersburg Shoe Mfg. Co. v. Cumberland Valley Railroad Co., 240 Pa. 519, 522, 87 A. 968; O'Donnell v. Pittsburgh, 234 Pa. 401, 410, 83 A. 314. In Carroll v. Asbury, 28 Pa. Superior Ct. 354, 359, it was said that '... The right which the plaintiff acquired to use the street was not, however, dependent upon the acceptance or rejection by the public of the dedication....' There is also language by this Court in Mitchell v. Bovard et al., 279 Pa. 50, 123 A. 588, which indicates that we have recognized the inapplicability of the Act of 1889 to the private contract between the grantor and his grantee. Mr. Justice SADLER, speaking for the Court at p. 53 states that 'In so far as the ...