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Zalman v. City of Chester

Commonwealth Court of Pennsylvania

June 27, 2017

Bernard Zalman and Sandra Zalman, his Wife, Appellants
v.
City of Chester Bernard Zalman and Sandra Zalman, h/w
v.
City of Chester Appellant

          Submitted: February 9, 2017

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JOSEPH M. COSGROVE, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

          OPINION

          JAMES GARDNER COLINS, Senior Judge.

         Bernard Zalman and Sandra Zalman, who are the designated Appellants (collectively Appellants), and the City of Chester[1], 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.

         Yarnall 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.

         Appellants 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.

         Both 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.[2] 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.

         Appellants argue the record demonstrates that the Borough of South Chester[3] 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"[4] 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.

         The 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.

         However, 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.

         Clarifying 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.

         The 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 ...


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