Appeal from the Order of December 24, 1974, of the Court of Common Pleas of Erie County, Civil Division, at No. 1095-A-1971. No. 277 April Term, 1975.
John W. English, Jr., John W. English, Sr., Jonathan G. Alberstadt, Erie, for appellant.
John M. Wolford, MacDonald, Illig, Jones & Britton, William R. Brown, Erie, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 244 Pa. Super. Page 104]
Plaintiff-appellant Harbor Marine Company, Inc., brought an action in ejectment at law against defendant-appellee James Nolan. The trial court found in favor of appellant and issued an Order in Ejectment against appellee. The court en banc*fn1 sustained the exceptions of the appellee and dismissed the appellant's action. From that order, this appeal arises. We affirm.
A clear appreciation of the issues presented by this case will be facilitated by an examination of the development of the dock area bordering the City of Erie, Pennsylvania.*fn2 The Pennsylvania Legislature, by the Act of March 29, 1805, Chapter 2588 (1805 Statutes at Large of Pennsylvania 1005 (1915)), created the Borough of Erie. The shore of Lake Erie was to serve as the borough's northern boundary. The same statute gave the borough power to lay out lots in the Bay of Presque Isle, to be used for wharves, and also gave the borough power to extend into the bay the streets which had previously terminated at the shore line.
[ 244 Pa. Super. Page 105]
In 1834, the Act of April 15, 1834, No. 234 (1833-34 Laws of Pennsylvania 520 (1834)), extended the northern boundary of the borough 1300 feet into the bay. Pursuant to that act, the borough constructed a public pier at the new northern boundary.
In 1837, the Burgess and Town Council of Erie entered into agreements with the owners of lots in the Bay of Presque Isle, giving those owners power to erect wharves or platforms just south of the public pier. The lots south of the public pier were to correspond in location and dimension to the lots north of the shore line. These lots, south of the public pier, became known as Outshore Water Lots.
Completing the scenario for this case, the City of Erie, in 1860, enacted an ordinance extending a series of streets, one of which was Peach Street, northwardly into the Bay of Presque Isle and extending as far as the southern edge of the public pier.
More than a century later, Erie Fish Company was the record owner of Outshore Water Lot Number 80 on the east side of Peach Street and J. W. Nolan & Sons, Inc., was the record owner of Outshore Water Lot Number 81 on the opposite (west) side of Peach Street. In 1965, appellee entered into articles of agreement to purchase Outshore Water Lot Number 80 from Erie Fish Company. At the same time, a petition was filed with the City of Erie requesting that the section of Peach Street between lots 80 and 81 be vacated and conveyed to appellee. The petition averred that appellee was the equitable owner of the two abutting lots. The petition was signed by appellee as agent for J. W. Nolan & Sons, Inc., and John Wilson, secretary of Erie Fish Company, testified that he signed such a petition as agent for Erie Fish Company.
[ 244 Pa. Super. Page 106]
An ordinance was enacted purportedly accomplishing the above objective, the purpose of which was announced in the following language:
"Vacating and discontinuing Peach Street between Out-shore Water Lots 80 and 81 and bounded by the West Public Dock Drive on the north and the West Canal Basin on the south, for an approximate distance of 200 feet and reverting said land vacated to the abutting property ...