Submitted: February 9, 2017
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE JOSEPH M. COSGROVE, Judge HONORABLE JAMES GARDNER
COLINS, Senior Judge
GARDNER COLINS, Senior Judge.
Zalman and Sandra Zalman, who are the designated Appellants
(collectively Appellants), and the City of
Chester, cross-appeal from an order issued on
November 9, 2015 by the Court of Common Pleas of Delaware
County (Trial Court) quieting title to a portion of Yarnall
Street and a portion of West Front Street located within
Chester. Based upon the following reasons and the able and
learned opinion issued by Judge Spiros E. Angelos of the
Trial Court, we affirm the Trial Court's order.
Street and West Front Street intersect within Chester in an
area along the Delaware River near the Commodore Barry Bridge
that was previously dominated by railroad tracks and industry
and is now a street away from the stadium that is home to the
Philadelphia Union pro soccer team. An elevated off-ramp from
U.S. Route 322 creates a semi-circle above the area at issue
and allows cars to exit onto West Second Street. After the
off-ramp, Yarnall Street is the first street that crosses
West Second Street and goes toward the river. As Yarnall
Street heads toward the river, Appellants' first property
is located on the northwest side of where Yarnall Street
intersects with West Front Street and Appellants' second
property is located on the southwest side of where Yarnall
Street intersects with West Front Street. Appellant Bernard
Zalman has operated a business at the northwest and southwest
corner of Yarnall and West Front Street since 1956.
filed a quiet title action to determine whether Appellants or
the City were the legal owners of portions of Yarnall and
West Front Streets. Following a non-jury trial, the Trial
Court issued an order concluding that title to that portion
of West Front Street that abuts Appellants' property
belongs to the City and that title to "the western half
of Yarnall Street as it stretches from the southern edge of
the intersection of West Front Street and Yarnall Street
south to the southern boundary of [Appellants'] property
located at the southwest corner of Yarnall and West Front
Street, " belongs to Appellants.
Appellants and the City appealed the Trial Court's order
to this Court and each requests that this Court affirm that
portion of the Trial Court's order which quiets title in
their favor and reverse that portion of the Trial Court's
order which quiets title in the other party's
favor. Appellants argue that the Trial Court
abused its discretion by concluding that the evidence
demonstrated that West Front Street was dedicated, opened,
and used by the public prior to passage of the Act of May 9,
1889, P.L. 173 (Act of 1889), 36 P.S. § 1961, and that,
therefore, the 21-year statute of limitations set forth in
the Act of 1889 is inapplicable to the portion of West Front
Street in dispute. The City argues that the Trial Court
abused its discretion by concluding that the City had vacated
the portion of Yarnall Street in dispute where the City did
not pass an ordinance expressly vacating the street. We will
address these issues seriately.
argue the record demonstrates that the Borough of South
Chester granted the right to construct a freight
railway line across private property on what is now West
Front Street prior to any plotting, laying out or opening of
West Front Street. As a result, Appellants argue there was no
dedication or acceptance of West Front Street by the Borough
of South Chester, which was later incorporated into Chester.
Appellants argue that there is no evidence in the record that
West Front Street was used by the public prior to passage of
the Act of 1889 and Appellants, therefore, contend that there
is no support in the record for the Trial Court's Finding
of Fact No. 11. Finding of Fact No. 11 states:
It has been specifically held that 36 P.S. § 1961 does
not apply retroactively to a street that was in use at least
by railroads. City of Pittsburgh v. Pittsburgh & L.
E. R. Co., 106 A. 724, 726 (Pa. 1919).
(Trial Court Op., ¶11.) The City argues that the cases
relied upon by Appellants for historical evidence, including
Borough of South Chester v. Chester and Delaware River
Railroad Co., 5 Del. Co. Rep. 114 (Del. Cmm. Pls. 1892),
and Chester and Delaware River Railroad Co. v. South
Chester Railroad Co., 5 Del. Co. Rep. 153 (Del. Cmm.
Pls. 1892), as well as the 1913 and 1934 "Sanbourn
Maps" offered as exhibits by the City, support
the City's argument and the Trial Court's conclusion
that West Front Street was a public street by at least 1892,
rendering the Act of 1889 inapplicable to Appellants'
quiet title claim.
three essential elements that must be satisfied to
demonstrate that a street has been opened for public use are:
(1) a grant or dedication that is express or implied; (2) an
acceptance; and (3) an opening or public use. Borough of
Leighton v. Katz, 462 A.2d 889, 892 (Pa. Cmwlth. 1983).
Per the Act of 1889, the General Assembly set forth the
following statutory provision applicable to unopened ways or
streets on town plots:
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.
36 P.S. § 1961. As early as 1896, our Supreme Court
stated that "[t]he 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." Quicksall v. City of Philadelphia, 35
A. 606, 609 (Pa. 1896). In Quicksall, the Court
concluded that the Act of 1889 prevented a street laid out
and dedicated in 1848 from being opened and used by the
public without compensation because for the preceding 44
years the street had been exclusively within the possession
of the abutting owners and used by them for stone quarrying
and it was, therefore, too late for the city to assert a
right founded on the dedication in 1848.
the Court also concluded that the Act of 1889 had no
retroactive effect, stating that "[t]here is nothing in
this statute that would justify us in giving it a retroactive
construction, so as to apply to streets opened and used prior
to its passage." Osterheldt v. City of
Philadelphia, 45 A. 923, 923 (Pa. 1900). In
Osterheldt, a deed from Richard Peters to Frederick
Osterheldt in 1849 contained a dedication for public use of a
strip of land owned by Peters that had also been stamped as a
public street on the plat recorded by Peters. At some point
between 1865 and 1870, Osterheldt erected fencing enclosing
25 feet of the strip of land laid out and dedicated by Peters
as a public street. In 1884, city council passed an ordinance
opening "Fairmount Avenue" with a width of 50 feet.
The street now known as Fairmount Avenue included the strip
of land identified as a public street in the deed from Peters
to Osterheldt that Osterheldt had enclosed with fencing.
Osterheldt's heirs brought an action for damages against
the city and the Court held that the deed from Peters to
Osterheldt in 1849 operated as a relinquishment of all claims
for damages for the use of the land within the line of
Fairmount Avenue and that, because the Act of 1889 had no
application, Osterheldt's heirs had no claim for damages.
Id. at 923.
application of the Act of 1889 further, the Court held in
In re Widening of State Road, 84 A. 686 (Pa. 1912),
that the Act applied only to new streets laid out by owners
but not opened or used by the public for the subsequent 21
years and that the Act had no application to the widening of
a road to include land previously dedicated as a part of a
public highway. Id. at 687. In State Road,
an owner of a large tract of land executed a deed and
recorded a plan subdividing the tract into lots and streets
including Aramingo Street, which was recorded as being 60
feet wide although only 50 feet was currently being used by
the public. Purchasers of the surrounding tracts subsequently
built fences along the bed of Aramingo Street, enclosing the
10 unused feet of the plotted roadway. The Court concluded
that the public actually used and continued to use Aramingo
Street after its dedication and that, even though the public
did not use the entire width dedicated, public use of any
part of the road was sufficient to establish acceptance of
the entire width of the road dedicated. Id. at 687.
Court addressed the effect of use of a street by the
railroads on the issue of whether a street was a public
street in City of Pittsburgh v. Pittsburgh & L. E. R.
Co., 106 A. 724 (Pa. 1919). In Pittsburgh & L.
E. R. Co., the city filed a bill in equity to remove
encroachments by abutting property owners on an alleged
public street, known as South Water Street, which stretched
from Seventeenth to Twenty-Sixth Street within the City of
Pittsburgh. The area where the alleged street was located was
originally developed from two tracts of land on the southern
bank of the Monongahela River, the eastern part being owned
by Oliver Ormsby and the western part being owned by John
Ormsby, which were partitioned by the Orphans Court in 1841
and 1844. A third tract, which lay between the two Ormsby
tracts, was determined to belong to Oliver Ormsby and
partitioned in 1844. The Court found that "[n]umerous
streets are referred to in the partition proceedings and
shown on plots accompanying the same, including Water street
represented as of the width of 100 feet, more or ...