Abstracts the street, which he purchased in August, 1889, without notice that his grantor had dedicated the street to public use by deed dated July, 1888, accepted by the city May, 1890, and recorded in August of that year. The street as originally laid out varied in width at different points from 30 to 46 feet. The deed of dedication described the street as of the uniform width of 40 feet, and purported to convey the street as physically opened. A width of 40 feet includes part of a lot purchased by the plaintiff, in front of which the street as opened was but 30 feet wide, and there were other but less material variations between the lines of the street as they existed when the plaintiff bought and the lines as fixed by the deed of dedication. In 1899 the board of surveyors made and confirmed a plan in which Linmore street is plotted of a uniform width of 30 feet, and shortened at one end 70 feet. The proposed improvement of the street is in conformity with this plan. * * The substance of the plaintiff's contention is that, while the deed of dedication is inoperative and a cloud on his title. as far as it conflicts with his rights as a purchaser without notice, it is in all other respects valid and effective; that the street as laid out has been dedicated by implication by the opening thereof and use for 10 years, and by the acceptance by the city as shown by legislation concerning it; that by both the express and the implied dedication the city covenanted to use and maintain the street as a public highway, and that it cannot now vacate it except in the manner provided by the act of 1854. The ground covered by the street was conveyed to the city, "to have and to hold * to the same extent and with the same effect as if the said street had been opened by a decree of the court of quarter sessions. for the county of Philadelphia upon proceedings had for that purpose under the road laws of the commonwealth of Pennsylvania." The deed gave to the city the same power over the street that it has over a street opened by adverse legal proceedings, and the right of the city to narrow or vacate a street so opened, under proceedings such as were instituted in this case, is beyond doubt, and the liquidation or payment of damages is not a prerequisite to a legal vacation. Wetherill v. Railroad Co., 195 Pa. 156, 45 Atl. 658. As the street plotted on the city plan is wholly within the lines of the street as originally opened, no right of the plaintiff growing out of his purchase without notice of the deed to the city is interfered with. For any injury he may sustain by reason of the narrowing or vacation, he has an adequate remedy at law. The decree sustaining the demurrer and dismissing the bill is affirmed. Uhler v. Cowen et al. (Supreme Court of Pennsylvania, May 13, 1901.) [49 Atl. Rep. 77.] Taking Leased Property for Street - Liability of Lessee for Rents. A city having given notice to a property owner-under Act April 21, Abstracts 1855 (P. L. 266), authorizing it, on three months' notice, to open a street-that at the expiration of three months it would require certain of his land for a street, and he having served this notice on his lessees, and the property leased being of no value to them without the part claimed for a street, they may remove from the premises, without liability for rent after expiration of the three months, though the city does not then take possession; they being liable to be dispossessed at any time thereafter, and the owner being given by the act of 1855 an immediate remedy, on receipt of the notice, to obtain from the city full compensation for injury sustained. Appeal from court of common pleas, Philadelphia county. Action by Clara E. Uhler, executrix and trustee under the will of Taylor M. Uhler, deceased, against John H. Cowen and another, receivers of the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendants appeal. Reversed. W. B. Linn, for appellants. T. A. Fenstermaker and John G. Johnson, for appellee. MESTREZAT, J. We think the defendants were justified in removing from the premises in pursuance of the notice given them, and that their liability for rent ceased at the expiration of three months from October 26, 1896. This is just and equitable to them, and does no injury to the owner of the premises. The act of 1855 gave him an immediate remedy to obtain full compensation for the injury he sustained. The report of viewers shows that the sum awarded the plaintiff included all claims for rent against the defendants at the time the premises were taken. The city is not in a position to complain, as the vacation of the premises by the defendants was in pursuance of its notice that at the expiration of the period therein named the property would be required for public use, and would be entered upon to the extent required for its purposes. The plaintiff's right of action then accrued, and the act of 1891 required him to pursue it within six years from the date of the notice. It follows that the court below erred in entering judgment against the defendants for the full amount of the rent claimed by the plaintiff. The judgment is reversed, and judgment is entered on the case stated in favor of the plaintiff and against the defendant for the sum of $485.40; the costs of this appeal to be paid by the plaintiff. Scharr et al. v. City of Camden et al. Street Improvements-Injunction-Estoppel.-A lot holder who consents to a change of grade of a sidewalk in front of part of her property, and who stands by without objection, while the city authorities do extensive work and expend money thereon and on the sidewalk of adjoining owners, will not be allowed an injunction to restrain the completion of the work on the remaining portion of the sidewalk. Same-Same.-An injunction will not be decreed where its effect will be to continue a condition in a highway which is dangerous to Abstracts those who pass over it. This is especially true where the threatened damage to the applicant for the writ is largely conjectural. (Syllabus by the Court.) Bill by Antonia Scharr and others against the city of Camden and others. Dismissed. S. H. Richards and Thomas E. French, for complainants. E. G. C. Bleakly, for defendants. Streets Reno et al. v. City of Iola. (Supreme Court of Kansas, July 6, 1901.) [65 Pac. Rep. 678.] Dedication-Plats Evidence. An owner of land adjacent to a city platted it, and left the plat in the office of the register of deeds, but the plat was subsequently lost, and there was no evidence as to whether it was properly acknowledged and filed, but it was treated for several years as a plat of a regular addition. A strip of land 30 feet wide on the east of the addition was used as a street, and lots were sold abutting it, to which no other means of access existed. The street was afterwards closed, and an application was made to the city to open the same. The original owner had stated that he had intended the strip as a street, and supposed it had been duly laid out and dedicated as such; but a copy of the plat, made by a land agent for his own use, did not show that the strip was designated as a street: held, that such facts justified a finding that the strip had been dedicated as a street. Error from district court, Allen county; L. Stillwell, Judge. Action by the city of Iola against Joseph T. Reno and others. From a judgment in favor of plaintiff, defendants bring error. Affirmed. Oscar Foust & Son and Baxter D. McClain, for plaintiffs in error. Travis Morse, for defendant in error. PER CURIAM. As to the first claim of plaintiffs in error, it may be said that it does not appear that this strip of land was not formally dedicated as a street by Jones in 1872. It is true that a reliable witness made for his own use what he thinks was a copy of the original plat, and such copy, which is in evidence, does not show that the strip upon the north or the one upon the east was designated as a street; still he does not testify that such paper is an exact copy of the original plat in those respects, and, as he made it for his own use as a land agent, it is hardly probable that he would have gone to the trouble of copying the plat outside of the lots and blocks had streets been shown upon the original. Neither was it shown that such plat was not duly acknowledged or filed in said office, and, inasmuch as it was with other plats in the office and was treated as they were, the court may well have believed from the evidence that it was in fact duly acknowledged and filed, but that the register of deeds had failed to make a record thereof. Upon this proposition, as well as the second one raised by plaintiffs in error, it should also be noted that this strip of land did not lie adjacent to any other Abstracts land owned by Jones, was 1,090 feet long and only 30 feet wide, and would probably not have been reserved by the owner for any other purpose; and the fact that lots facing it were sold to be used for residence purposes, taken in connection with the subsequent statement of the owner that he intended the land for a street, and believed it to have been regularly dedicated for that purpose, would seem to justify the conclusion reached by the trial court. McClellan et al. v. Town of Weston. (Supreme Court of Appeals of West Virginia, Sept. 7, 1901.) Incorporation of Town-Statute-Plan and Survey-RecordationNotice to Parties Interested.-Sections 8 and 9 of an act of the general assembly of Virginia passed January 14, 1846, incorporating the town of Weston, are as follows: "(8) Be it further enacted, that all streets, cross streets and alleys, which are already laid off and opened, or which may at any time be located, surveyed and opened in said town, shall be and they are hereby established as public streets and alleys of the said town. (9) That the said trustees shall, within six months after the passage of this act, open all the public streets and alleys of said town; shall make or cause to be made a survey and correct plan or plat of said town, showing distinctly each lot, street and alley, and the size and width thereof, numbering anew all lots, and showing the former as well as the new numbers of all lots which have been numbered heretofore, with such remarks and explanations thereon as they may deem necessary and proper; which plan or plat so made out, and under the hands and seals of any four of said trustees, shall be lodged in the clerk's office of the county court of Lewis county, there to be recorded and kept; and the said plan and survey so duly made, signed, sealed and recorded, shall, in all future suits and contests concerning the boundaries of the lots, streets and alleys of the said town, be deemed, held and taken as full and conclusive evidence between the parties: provided, that infants, femes covert, persons non compos mentis, or out of the commonwealth, shall have six months after such disability shall be removed; within which time they may contest such plan and survey so made and recorded." Laws 1845-46, p. 139: held, that all real-estate owners in the town were bound to take notice of said act incorporating said town, as well as of the acts of the trustees required by said act to be performed thereunder in reference to the plan and survey of said town so to be made, signed, sealed, and recorded. Same Same Same -Same.-Such plan and survey, when duly recorded, was full and complete notice to all abutting real-estate owners on the streets and alleys of said town of the claims of the town as to the location of the lines of such streets and alleys. Same Streets and Alleys Adverse Possession against City.-Persons in possession of any portion or portions of such streets and alleys so laid out by having the same inclosed, and so continued in possession after the making and recording of such plan and survey, held such possession subject to the demands of the town whenever it should see proper to open such streets or alleys to their full width for the public use. (Syllabus by the Court.) Appeal from circuit court, Lewis county; C. C. Higginbotham, Special Judge. Bill by Floride McClellan and others against the town of Weston. Reversed. Abstracts Decree for complainants, and defendant appeals. E. A. Brannon, for appellant. W. W. Brannon, for appellees. Schettler et al. v. Lynch et al. (Supreme Court of Utah, March 25, 1901.) Dedication of Highway - Express and Implied-Intention.—A dedication of land for a public highway may be either express-as where the owner manifests his purpose by a grant evidenced by writing-or implied, when the acts and conduct of the owner clearly manifest the intention on his part to devote the land to the public use; but in either case it is always a question of intention, and no particular formality or form of words is necessary. Same Implied Dedication-Nature of.--An implied dedication is founded on the doctrine of equitable estoppel, and when land has been thus set apart as a highway for the use, convenience, and accommodation of the public, and enjoyed as such, the law considers it in the nature of an estoppel in pais, which precludes the original owner from revoking such dedication. Same Same Not within the Statute of Frauds.-An implied dedication of land as a highway is not within the statute of frauds, and may be established by parol, or in any conceivable way by which the intent of the owner can be made apparent. Same Same--Intention to Dedicate May Be Inferred from Long User. -Where land has been set apart by the owner for public use as a highway, and accepted by the public, the right of the public does not depend upon a 10 or 20 years' user or possession; the dedication may be inferred from long-continued use by the public with the knowledge of the owner, and without objection by him. Same Same -Same--Estoppel. - Where the evidence shows such a course of conduct and such acts respecting the land in controversy as clearly manifest an intention on the part of the owner to appropriate it to the public use as a highway, and such as were calculated to induce people to believe that the land was devoted to such purpose, and lull them into security as to any rights they might acquire with reference thereto, the law will imply a dedication. Same Same Acceptance by the Public May Be Inferred from Necessity and Long User. It appearing from the evidence that without the land in controversy the street would be but 11⁄2 rods in width, and not of sufficient width to permit some teams to turn around, and that since it has formed part of the street it has been used more or less by the public, an acceptance of the dedication on the part of the public may be inferred. Same-Šame-Subsequent Grantees Bound by Dedication.-Land having been once dedicated by the owner of the soil as a highway, and having been accepted by the public all subsequent grantees of abutting lands are bound by such dedication, and have no right to obstruct any portion of the city. (Syllabus by the Court.) Appeal from district court, Salt Lake county; Ogden Hiles, Judge. Action by B. H. Schettler and others against E. P. Lynch and P. H. Riley. Judgment for plaintiffs. Defendants appeal. Affirmed. Bennett, Harkness, Howat, Sutherland & Van Cott, for appellants. Zane & Rogers and W. D. Riter, for respondents. |