decided: July 6, 1983.
THE BOROUGH OF LEHIGHTON, APPELLANT
J. GORDON KATZ AND SHIRLEY G. KATZ, HUSBAND AND WIFE, APPELLEES
Appeal from the Order of the Court of Common Pleas of Carbon County in case of J. Gordon Katz and Shirley G. Katz, husband and wife v. Borough of Lehighton, No. 84 January Term, 1978.
Paul A. McGinley, Gross, McGinley & McGinley, with him Marianne S. Lavelle, Shutack & Lavelle, for appellant.
Armin Feldman, with him Cheryl Ann Klepper, Martin H. Philip Associates, P.C. for appellees.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 75 Pa. Commw. Page 389]
The Borough of Lehighton (Borough) has appealed from a decree of the Court of Common Pleas of Carbon County in an action to quiet title. At issue is the trial court's determination that J. Gordon Katz and Shirley J. Katz (Appellees) possess fee simple title, subject to existing easements, to one-half of a portion of an unopened street in the Borough and that the Borough possesses no right to use the street as a public thoroughfare.
[ 75 Pa. Commw. Page 390]
The record reflects that in April, 1903 a plan of lots, streets and alleys was prepared regarding land located in the Borough known as the Beckendorf Estate. One of the streets laid out by the plan, Ochre Street,*fn1 is the subject of the instant appeal. Several of the lots in the Beckendorf Estate were sold between 1903 and 1950 when the remaining land was conveyed to Walter D. and Hilda Hammel. The Hammels subsequently prepared a new plan which incorporated the streets and alleys as laid out in 1903. At a Borough Council meeting on March 3, 1952, the Hammels offered to dedicate three streets, including Ochre Street, to the Borough for public use as highways. The offer was made in the form of a written deed of dedication. On April 21, 1952, the Council voted to:
[A]dvise Mr. Hammel or his attorney that provision be made for an alley between 5th & 6th Streets along the north property line and also that all public streets and alleys as indicated on the proposed plan be dedicated to the borough.
On April 7, 1970, the Appellees purchased a parcel of land from the Hammels which is bounded on the north by Ochre Street, on the east by Sixth Street and on the west by King Alley. Appellees thereafter obtained a building permit and constructed a dwelling on their property with an attached garage. On May 8, 1972, Appellees were notified by the Borough that their garage encroached onto Ochre Street, as it appeared on the Hammels' development plan, by approximately eight feet. The Borough apparently took no further action with respect to the alleged encroachment until, in November 1977, the Appellees filed the instant action to quiet title.
[ 75 Pa. Commw. Page 391]
Following a hearing, the trial court ruled that the Borough had lost its right to use Ochre Street between King Alley and Sixth Street as a public thoroughfare due to its failure to open or use that portion of the street during the twenty-one years following the Hammels' 1952 offer of dedication.*fn2 The Borough's exceptions to the court's decree were dismissed and, following the entry of judgment, the instant appeal was taken.
The trial court found that the sole issue before it was whether or not the Borough had accepted the Hammels' dedication offer within twenty-one years. The statutory language applicable to boroughs which establishes the twenty-one year limitation is found at Section 1724 of the Borough Code (Code)*fn3 and provides, in pertinent part, as follows:
Whenever any street shall have been laid out and shall not have been opened to, or used by the public for a period of twenty-one years, such street shall not thereafter be opened without consent of at least fifty-one percent of the number of owners of the abutting real estate and without the consent of the owners of at least fifty-one percent of the property abutting such street, based on a front foot basis.
[ 75 Pa. Commw. Page 392]
Since Section 1724 of the Code has not been the subject of extensive litigation, we must turn to decisions involving its predecessor, the Act of 1889,*fn4 for a better understanding of its purpose. It has been stated that the Act of 1889 is aimed at relieving land upon which streets have been laid out but not used by the public, from the servitude imposed by the dedication offer. Rahn. The provision is actually a statute of limitations establishing a time period within which public acceptance of a dedication offer must occur. Id. We believe that this interpretation similarly applies to Section 1724.
The Borough's first argument challenges the applicability of Section 1724 to the instant case. The Borough contends that the limitation period does not apply where, as here, a written deed of dedication is offered by a developer and accepted by Borough Council at a regularly scheduled Council meeting. The Borough relies upon the following Superior Court interpretation of the Act of 1889 to support its position:
In our opinion [the Act of 1889] does not apply to a dedication consummated by the tender and acceptance of a written deed. The legislature was concerned only with implied dedications arising when an owner has laid out streets on a plan of lots and has conveyed some lots referring to said plan.
[ 75 Pa. Commw. Page 393]
It is the act of acceptance, however, which makes the dedication complete. Id. An acceptance may be express or implied; however, in order to avoid the bar of the twenty-one year limitation period, formal expressions of acceptance must generally be accompanied by the actual opening or use of the dedicated street. Elliott. An express dedication of a street and its adoption by resolution of the municipality does not cause the land to become a public thoroughfare. " [S]uch acts are merely equivalent to a plotting or laying out ; it is nothing but a paper street." Milford Borough, 288 Pa. at 438, 136 A. at 671 (1927) (emphasis added). Moreover, a street offered for dedication becomes a public street only to the extent to which it is actually used or opened. The opening of a portion of a street does not affect the status of the remaining unopened portion. Shamokin v. Helt, 250 Pa. 80, 95 A. 385 (1915).
Thus, our inquiry in the instant case must focus on whether or not the Borough accepted the Hammels' 1952 offer of dedication within the twenty-one year time limitation. According to the legal principles set forth above, the Borough Council's formal expression of acceptance in 1952, which was unaccompanied by the actual use or opening of Ochre Street, was not sufficient to render that street a public thoroughfare. We, accordingly, are left to determine whether the Borough has established an implied acceptance of Ochre Street within the limitation period. We observe that the burden is on the Borough to show an acceptance of the dedication offer by clear and convincing evidence. Milford Borough. An implied acceptance must be demonstrated by unequivocal authoritative acts of the municipality showing its intention to accept. Tri City Broadcasting Co. v. Howell, 429 Pa. 424, 240 A.2d 556 (1968). Occasional use of the street by the municipality will not suffice to create an implied acceptance.
[ 75 Pa. Commw. Page 395]
There must instead be continuous, open and notorious acts over a long time period showing beyond doubt that the municipality intended to accept the proposed street for public use. Milford Borough.
It is clear in the instant case, from the facts as found by the trial court, that no Borough acceptance of Ochre Street between Sixth Street and King Alley has occurred. The trial court's findings, which are supported by the record, reveal that, to date, the portion of Ochre Street here at issue remains impassable and has never been opened or used by the public. Prior to 1975, Borough activity on Ochre Street between Fifth and Seventh Streets (a four block area) was confined to the clearing of trees and shrubbery and occasional mowing of grass. We do not think that such activity rises to the level of unequivocal acts showing beyond a doubt the Borough's intent to accept the dedication. Moreover, the fact that another portion of Ochre Street (between Fifth and Sixth Streets) was paved sometime after 1975 cannot operate as an acceptance of the portion here in dispute since the opening occurred after the twenty-one year period had already expired in 1973. See Elliott.
We, accordingly, conclude that the Borough's right to accept the 1952 dedication offer of Ochre Street between Sixth Street and King Alley is barred by the twenty-one year limitation period of Section 1724 of the Code.
We are also in agreement with the trial court's conclusion that the Appellees have fee simple title, subject to any existing easements,*fn6 to the southern half of
[ 75 Pa. Commw. Page 396]
Ochre Street between Sixth Street and King Alley. The Hammels, as we have seen, offered to dedicate Ochre Street to the public. Since the record shows that the Appellees' deed used the proposed street as a boundary, the deed conveyed title in fee to the center of the street.*fn7 The fact that the Borough did not accept the dedication offer in a timely manner does not alter Appellees' title to the unopened street. McLaughlin v. Cybulski, 192 Pa. Superior Ct. 7, 159 A.2d 14 (1960).
The Borough's final argument, that the trial court improperly excluded certain evidence which allegedly demonstrated the Borough's timely intent to open the area of Ochre Street here in dispute, is without merit. The evidence was properly excluded as hearsay and the Borough was given a fair opportunity to have the declarant testify and be available for cross-examination. The Borough declined to produce the witness.
The order of the Court of Common Pleas of Carbon County, dated May 18, 1981, is hereby affirmed.