Ejectment. The declaration described the property for which the
suit was instituted as "lying between Water Street and the River
Monongahela, with the appurtenances, situate and being in the City
of Pittsburgh." The jury found a general verdict for the plaintiff,
and the defendants assigned for error that the verdict, being
general, is void for the want of certainty. By the Court:
"This must be considered as an exception to the sufficiency of
the declaration, as any other matter embraced in it might have been
considered on a motion for a new trial, but cannot now be
noticed."
Formerly it was necessary, to describe the premises for which an
action of ejectment was brought with great accuracy, but far less
certainty is required in modern practice. All the authorities say
that the general description is good. The lessor of the plaintiff,
on a lease for a specific number of acres, may recover any quantity
of less amount.
The plaintiffs in error, defendants in ejectment in the circuit
court, claimed for the City of Pittsburgh a slip of land lying on
the bank of the River Monongahela near the junction of that river
with the River Alleghany, being a space between the southern line
of the lots of the city and the Monongahela River. It was contended
by them that this slip of land was dedicated by the surveyor, when
he laid out the town, to the public as a street or
for other public uses. The depositions of witnesses who were
present when the ground on which the city stands was laid out in
lots by the surveyor, authorized so to do by the proprietors of the
land, were offered to prove declarations of the surveyor, made to
persons assembled at the survey and who occupied part of the ground
so laid out, by which declarations and other acts of the surveyor,
also proposed to be proved, it was contended the said dedication
was made,
i.e. that he had observed that "the street," the
slip of land,
"to low water mark, should be for the use of the citizens, and
the public, forever." By the Court:
"The surveyor had authority to fix upon the plan of the town and
survey it. He had the power to determine the width of the
respective streets and alleys, the size and form of the lots, to
mark out the public grounds, and to determine on everything so far
as related to the town and its beauty, convenience, and value.
These were clearly within the scope of his powers, as they were
essentially connected with the plan of the town, on which he was
authorized to determine at his discretion. The proof of such
declarations should have been admitted by the circuit court,
because, under the circumstances, they formed a part of the
transaction."
The declarations of a surveyor which contradict his official
return are clearly not evidence, nor ought they to be received
where he has no power to exercise discretion, as explanatory of his
return, while he is still living, and may be examined as a
witness.
If the ground in controversy in the ejectment had been dedicated
for a particular purpose and the city authorities had appropriated
it to an entirely different purpose, it might afford ground for the
interference of a court of chancery to compel a specific execution
of the trust by restraining the corporation, or by
Page 31 U. S. 499
causing the removal of obstructions. But even in such a case,
the property dedicated would not revert to the
original owner. The use would still remain in the public,
limited only by the conditions imposed in the grant.
The right of the court to decide on the legal effect of a
written instrument cannot be controverted, but the question of
boundary is always a matter of fact for the determination of the
jury.
It is the province of the court, in an action of ejectment, that
it should fix the boundaries of the tract in controversy by an
examination of the whole evidence.
Artificial or natural boundaries called for control a call for
course and distance.
An unmolested possession for thirty years would authorize the
presumption of a grant. Under peculiar circumstances, a grant has
been presumed from a possession less than the number of years
required to bar the action of ejectment by the statute of
limitations.
By the common law, the fee in the soil remains in the original
owner where a public road is made upon it, but the use of the road
is in the public. The owner parts with this use only, for if the
road should be vacated by the public, he resumes the exclusive
possession of the ground, and while it is used as a highway, he is
entitled to the timber and grass which may grow upon the surface,
and to all minerals which may be found below it. He may bring an
action of trespass against anyone who obstructs the road.
Where the proprietor of a town disposes of all his interest in
it, he would seem to stand in a different relation to the right of
soil, in regard to the streets and alleys of the town, from the
individual owner over whose soil a public road is established and
who continues to hold the land on both sides of it. Whether the
purchasers of town lots are in this respect the owners of the soil
over which the streets and alleys are laid as appurtenant to
adjoining lots,
quaere.
In some cases, a dedication of property to public use, as for
instance a street or public road, where the public has enjoyed the
unmolested use of it for six or seven years, has been deemed
sufficient for dedication.
This was an ejectment originally instituted in the District
Court for the Western District of Pennsylvania, and removed to the
Circuit Court for the Eastern District under the Act of Congress of
March 3, 1821, the judge of the Western District having been
counsel in a former ejectment involving the same matter in
controversy.
The defendant in error, the plaintiff below, claimed in the
declaration
"one messuage, a lot, or piece or parcel of land, lying between
Water Street and the River Monongahela, with the appurtenances
situate and being in the City of Pittsburgh."
MR. JUSTICE Baldwin did not sit in this case, he having been of
counsel for the defendant in error, in the circuit court.
The cause came on for trial at the Circuit Court for the
Eastern
Page 31 U. S. 500
District of Pennsylvania at the April term, 1829, and the jury
found a general verdict for the plaintiff in the ejectment. The
defendants prosecuted this writ of error.
On the trial, a bill of exceptions was tendered by the
defendants to the ruling of the circuit court, as to the
introduction of certain evidence and also to several of the matters
contained in the charge of the court, all which are particularly
stated in the opinion of this Court.
MR. JUSTICE McLEAN delivered the opinion of the Court.
This suit was brought in the Western District of Pennsylvania,
to recover a lot of ground in the City of Pittsburgh, described in
the declaration as lying between Water Street and the River
Monongahela. As the district judge could not sit in the cause, it
was certified to the Eastern District under the act of
Congress.
The defendants in the court below appeared in behalf of the city
and defended the action on the ground that the entire slip of land
between the north line of Water Street and the river was dedicated,
at the time the town was laid out, as a street or right of way to
the public.
The lessor of the plaintiff exhibited legal conveyances for the
lot in controversy.
At the trial, various exceptions were taken to the ruling of the
court in the rejection of evidence offered by the defendants and
also to the charge of the court to the jury. These exceptions are
brought before this Court for consideration by a writ of error.
The first assignment of error is in substance that the verdict,
being general, is void for want of certainty. That the finding of
the jury did not settle the matter in controversy, and by
consequence, did not authorize the judgment.
This must be considered as an exception to the sufficiency of
the declaration; as any other matter embraced by it might have been
considered on a motion for a new trial, but cannot now be
noticed.
The description of the lot in the declaration is general, as
lying between Water Street and the river, but no doubt is
Page 31 U. S. 501
entertained that this is a sufficient description. Formerly it
was necessary to describe the premises for which an action of
ejectment was brought with great accuracy, but far less certainty
is requisite in modern practice. All the authorities say that a
general description is good. The lessor of the plaintiff, on a
lease for a specific number of acres, may recover any quantity of
less amount.
The rejection of the evidence contained in the depositions of
Samuel Ewalt and John Finley is the second error assigned.
To understand the force of this exception, it will be necessary
to advert to a succinct history of the case.
There was vested in the Penn family a tract of land consisting
of between five and six thousand acres that included the Village of
Pittsburgh, which at that time consisted of a small number of
settlers, very few if any of whom had a title to the lots they
occupied. This tract was denominated a "manor," as was the practice
at that time to call large tracts of land, which had been surveyed
within the charter of the original proprietor of Pennsylvania.
Being desirous of laying out a Town at Pittsburgh, Tench Francis,
who acted as the attorney of John Penn, Jr. and John Penn,
addressed the following letter to George Woods, Esquire.
"Philadelphia, 22 April 1784"
"Sir: By directions of Messrs Penns, I take the liberty to
request you to undertake the laying out of the Town of Pittsburgh
and dividing all the other parts of the manor into proper lots and
farms, and to set a value on each, supposing them clear of any kind
of encumbrances, in doing of which be pleased to make the proper
inquiries and ascertain the previous claims, pretended or not, of
the present settlers and all others set up. The whole of the manor
being intended for immediate sale, I wish you would point out the
best method to effect it, and if agreeable to you to transact this
business, inform me on what terms you will do it. All expenses, and
your charges for making the above survey, I will pay, &c."
In the month of May or June of the same year, Woods laid out the
Town of Pittsburgh, and also surveyed into outlots and small
plantations, the residue of the manor, and made return to his
principal of a copy of the town plat and the other
Page 31 U. S. 502
surveys. This return, and the whole proceedings of Woods, were
sanctioned by the following letter.
"Philadelphia, 30 September, 1784"
"Dear Sir: As attorney to John Penn, Jr., and John Penn,
Esquires, late proprietors of Pennsylvania, I hereby approve of the
plan you have made of the Town of Pittsburgh, and now confirm the
same, together with the division of the outlots and the other part
of the Manor of Pittsburgh. The several appliers, agreeable to your
list furnished me, may depend on having deeds for their lots and
plantations whenever they pay the whole of the purchase money,
&c."
"TENCH FRANCIS"
"GEORGE WOODS, Esq."
The original plat of the Town of Pittsburgh, which was made by
Woods, was given in evidence to the jury, from which it appears
that the town was laid out into lots, streets, and alleys from the
junction of the Alleghany and Monongahela Rivers, extending up the
latter to Grant Street. With the exception of Water Street, which
lies along the bank of the Monongahela, all the streets and alleys
of the town were distinctly marked by the surveyor and their width
laid down. Near the junction of the rivers, the space between the
southern line of the lots and the Monongahela River is narrow, but
it widens as the lots extend up the river.
It was contended by the defendants in the ejectment that the
before-described slip of land was dedicated by the surveyor when he
laid out the town, to the public as a street or for other public
uses. As the lot for which the ejectment was brought is situated in
this narrow strip of land, the fact of dedication becomes
material.
From the plan of the town, it does not appear that any
artificial boundary, as the southern limit of Water Street, was
laid down. The name of the street is given and its northern
boundary, but the space to the south is left open to the river. All
the streets leading south terminate at Water Street, and no
indication is given in the plat or in any part of the return of the
surveyor that Water Street did not extend to the river as it
appears to do by the face of the plat.
The depositions of Ewalt and Finley were offered by the
defendants to prove the declarations of Woods at the time
Page 31 U. S. 503
the survey of the town was made. Ewalt stated that the survey
was about to be commenced at a point which would have required him
to remove his house, and that at his instance, the place of
beginning was changed. On a remonstrance's being made by several
persons who had assembled that Water Street would be too narrow,
Mr. Woods observed to the party,
"These houses will not remain or stand very long; you will build
new houses and dig cellars, and bank out Water Street as wide, till
it comes to low water mark, if you please."
He observed, "that this street, to low water mark, should be for
the use of the citizens and the public forever."
Finley states that Woods declared to the people of the town that
he would not change the old military plan, but that
"Water Street should be left open to the river's edge at low
water mark for the use of said town, that they, the citizens, might
use the same as landings, build walls, make wharves, or plant trees
at their pleasure."
Several objections are made to the competency of this
testimony.
It is insisted that the declarations of Woods respecting the
ground in controversy did not come within the scope of his
authority, and if they did, still that they ought not to be
received in evidence.
Woods had authority to fix upon the plan of the town and survey
it. He had the power to determine the width of the respective
streets and alleys, the size and form of the lots, to mark out the
public grounds, and to determine on everything so far as related to
the town which would add to its beauty, convenience, and value.
These were clearly within the scope of his powers, as they were
essentially connected with the plan of the town, on which he was
authorized to determine at his discretion.
But it is said that his acts, until sanctioned, were not binding
upon his principal, and that as his principal was not present, his
sanction, which was subsequently given, cannot be extended beyond
what appears upon the town plat, which was returned by the
agent.
The sanction, when given, related back to the original
transaction, and gave equal effect to it as if the principal had
been present. So far as valuations had been made of the lots
Page 31 U. S. 504
occupied by persons who had no titles and who were to obtain
titles on paying the prices fixed by Woods, it is very clear that
the principal could not be bound by the act of confirmation beyond
what appeared upon the face of the return, nor, if the agent had
attempted by any covert means to give to the citizens of the town
ground which he did not designate on his return and which did not
tend directly to increase the value of the town lots. But if the
ground dedicated for a street or any other public use was
essentially connected with the town lots and must have enhanced
their value at the sale, the increased value thus realized, and a
long acquiescence, would estop the original owner of the fee from
asserting his claim, though the ground dedicated had not been so
designated on the map.
There is nothing, however, on the plat which shows any limits to
the width of Water Street short of the river on the south. If a
line had been drawn along its southern limit, there would have been
great force in the argument that the ground between such limit and
the water was reserved by the proprietors. This would have been the
legal consequence from such a survey unless the contrary had been
shown.
It must be admitted that the declarations of an agent respecting
things done within the scope of his authority are not evidence to
charge his principal unless they were made at the time the act was
done and formed a part of the transaction. The declarations
referred to were a part of the
res gestae; they were
explanatory of the act then being done, and they do not, as was
contended, contradict the return, but tend to explain and confirm
it.
The southern limit of Water Street was the point of inquiry
before the jury. It was a question of boundary, and governed by the
same rules of evidence which are of daily application in such a
case. In this view, were not the declarations of the person who
fixed the boundary legal evidence? Not declarations casually made
at a different time from that at which the survey was executed, but
at the very time the act was done. The proof of such declarations
should have been admitted by the circuit court, because, under the
circumstances, they formed a part of the transaction.
The declarations of a surveyor which contradict his official
Page 31 U. S. 505
return are clearly not evidence, nor ought they to be received
where he has no power to exercise a discretion as explanatory of
his return while he is still living and may be examined as a
witness.
The exception taken to the rejection of Coates' deposition is
abandoned.
Several exceptions were made to the charge of the court to the
jury.
"1. In saying that the property in question passed to Wilson
unless the jury should decide that the whole ground to the river
was not only dedicated as a street, but that it must be capable of
being used as such; that it was used as a highway or street, and
that the slip of land, if it was not wholly given to the public as
a street, or so much of it as was not so given, vested in the
proprietors, as the undisputed owners of it."
As the fee to this property was vested in the Penn family at the
time the town was laid out, it is a clear proposition that such
parts of the land as were not conveyed to the purchasers or
dedicated to the public remained in the proprietors. But that part
of the charge which instructed the jury that it must appear that
the ground to the river was not only capable of being used as a
street but had been so used is conceived to be erroneous.
From the evidence in the cause, it appears that the northern
bank of the Monongahela, from its junction with the Alleghany to
the extent of the town plat, still remains elevated in many places,
but several of the streets leading south have been extended to the
river, and they have been so graduated as to admit of an easy
approach to the water.
When complaint was made to Woods that Water Street would be too
narrow, he observed that its width might be artificially extended
for the convenience of the citizens to the river. From this, it
appears that the ground was not then in a condition to be used as a
street, and that much labor was required to place it in that
situation. But if it were dedicated for that purpose at the time
the survey of the town was made, is it essential that it shall have
been used as such within a limited time? This would hardly be
pretended as it regards other streets in the town. Suppose Market
Street or Wood Street, leading north and south, had not been
Page 31 U. S. 506
improved by the City of Pittsburgh until this time, could the
original proprietors claim it as their property? If the dedication
of these streets to the public were a matter of doubt and a jury
was about to inquire into the fact, it is admitted that their not
having been improved or used as streets would be a circumstance
which the jury might weigh against the proof of dedication. But it
would most clearly be error for the court to instruct the jury that
unless the ground claimed for these streets was in a situation to
be used as streets, and had been so used, there could have been no
dedication. This appears to have been the purport of the
instruction to the jury in regard to Water Street. The words used
were, that the jury must be
"satisfied not merely that the open space was used by the
inhabitants of Pittsburgh or others, but that it was used as a
highway or street, and that in weighing the evidence on this point,
they would naturally inquire whether, from the nature of the
ground, it was capable of being so used."
From this instruction the jury was required to find against the
right asserted in behalf of the city unless the ground referred to
had been used as a street or highway. This substituted the use for
the right, and made the latter to depend upon the former. The right
was not necessarily connected with the use within a limited period,
as no such condition appears to have been imposed at the time it
was granted. Whilst the circuit court might have called the
attention of the jury to the fact that the ground in controversy
never having been used as a street was a circumstance which they
ought to weigh against the dedication contended for, it was error
in them to say in substance there could be no right without the
use. This withdrew from the jury the main point of inquiry by
substituting another, the existence or nonexistence of which was
not inconsistent with the principal fact. It was not essential for
the city to show that the entire slip of land referred to had been
used as a street, but it was essential to establish that it had
been dedicated as such.
The second objection to the charge is that the court
instructed
"the jury that no title in the corporation had been shown to a
single foot of ground within the city, and that the acts of
ownership exercised by the corporation were altogether inconsistent
with the right asserted in behalf of the
Page 31 U. S. 507
public, and plainly conveying to the jury the opinion that the
improper or peculiar use made of the ground in question by the
corporation gave the plaintiff a right to recover."
The inference drawn in the conclusion of this assignment of
error may not be fully sustained by the language of the court, but
it did instruct the jury that the acts of
"ownership exercised by the corporation, in the way which had
been stated, were altogether inconsistent with the right asserted
in behalf of the public, since, if the whole of this ground to low
water mark on the river had been dedicated for a street, it was
vested as such in the public, subject to be regulated and preserved
by the corporation, and could not legally be treated and used as
private property by that body."
The court here refers to certain wharves which have been
constructed by the city along the Monongahela and on the ground
claimed to be Water Street. Connected with these wharves is a
graduated pavement so as to render access to them from the city
easy, and a tax is imposed on steamboats and other vessels, for the
use of them.
If this ground had been dedicated for a particular purpose and
the city authorities had appropriated it to an entirely different
purpose, it might afford ground for the interference of a court of
chancery to compel a specific execution of the trust by restraining
the corporation or by causing the removal of obstructions. But even
in such a case, the property dedicated would not revert to the
original owner. The use would still remain in the public, limited
only by the conditions imposed in the grant.
It does not appear, however, that the construction of wharves on
the river and the pavement of the ground have in the least degree
obstructed its use as a street. The pavement has undoubtedly
promoted the public convenience, and if the whole line of the
street were graduated and paved to the water as a public way, it
would be much more valuable than in its present condition. The
wharves cause no obstructions to the use of this ground as a
street, and whether the city authorities have transcended their
power in raising a revenue from them by the improvements which have
been made is a question not necessarily involved in the case.
If that part of this ground which is connected with the
Page 31 U. S. 508
water has been appropriated to other uses than as a right of
way, they are not inconsistent with such right, but if such had
been the case, on that ground the jury could not have rendered a
verdict against the city. Such uses might have tended to show that
the dedication of this ground for a street as contended for had not
been made, but no other or greater effect should have been given to
them had they been fully established, and their inconsistency with
the right asserted clearly made out.
The third objection taken to the charge is that the court
instructed
"the jury that the deeds of Ormsby and to Craig and Bayard were
inconsistent with a dedication of a space south of the Water Street
lots to the river, and that these deeds conveyed the ground to the
river, subject to the easement over a part of it."
The deed of Ormsby to Gregg and Sidney bears date 5 November,
1798, and was for
"a certain lot of ground, situate in the Town of Pittsburgh
aforesaid, marked in the plan of said town, number 183, bounded by
Front Street, the River Monongahela, and lots numbered one 182 and
184, it being the same lot or piece of ground which the honorable
John Penn and John Penn, Jr., late proprietors of Pennsylvania, by
their indenture bearing date the second day of October one thousand
seven hundred and eighty-four, did grant and convey unto the said
Ormsby."
The deed to Craig and Bayard from the Penns bears date 31
December, 1784, and conveyed to the grantees
"and their heirs and assigns, thirty-two lots or pieces of
ground, situate in a point formed by the junction of the two Rivers
Monongahela and Alleghany in the Town of Pittsburgh, marked in the
general plan of said town made by Colonel Woods, numbers one,
&c., which said plan is recorded or intended to be recorded in
the Office for the Recording of Deeds for the County of
Westmoreland."
The said lots are bounded northwardly by the said Alleghany
River, eastwardly by Morberry or Mulberry Street, southwardly by
Penn Street, and southwestwardly by he Monongahela River.
Page 31 U. S. 509
The agreement under which this deed was executed is dated on 22
January, 1784, which was about six months before the town was
surveyed. By this agreement, the Penns sold to Craig and Bayard
"a certain tract of land in their Manor of Pittsburgh, lying and
being in a point formed by the junction of the Rivers Monongahela
and Alleghany, bounded on two sides by the rivers aforesaid,"
&c.
As this last deed covers ground which had been sold before the
town was laid out, it is not perceived how it could be considered
as inconsistent with the dedication contended for. It is true, the
deed was not executed until after the town plat was formed, but it
was executed by force of a purchase made prior to the survey of the
town, and the purchaser had a right to insist on the boundaries
designated in the agreement.
If the present contest were limited to the ground embraced in
this agreement and included in the general description of the deed,
it might become a serious question whether the description in the
deed, of the lots by their numbers as designated on Woods' plan of
the town would not control that part of the description which
refers to the Monongahela River. But, if it were admitted that this
deed conveyed the land to the river, it could, under the
circumstances, have no other effect than to restrict the dedication
of the ground for a street to the extent of the deed.
The deed from Ormsby called for the lot by its number, as marked
on the plan of the town and bounded by Front Street, the River
Monongahela, and lots numbered one hundred and eighty-two, and one
hundred and eighty-four. The construction given to these calls was
that the ground to the river was conveyed, subject to the easement
over a part of it. And this deed, the jury was instructed, was
inconsistent with the dedication of the ground to the water as a
street.
It is contended on the part of the defendant in error that the
charge given to the jury on this point, was the legal construction
of the deed, and consequently was a matter for the court to
determine.
The right of the court to decide on the legal effect of written
instruments cannot be controverted, but the question of boundary is
always a matter of fact for the determination of the jury. It is
the province of a court of instruct the jury
Page 31 U. S. 510
that they should fix the boundaries of the tract in controversy
by an examination of the whole evidence, and that artificial or
natural boundaries called for control a call for course and
distance. But it would withdraw the facts from the jury if the
court were to fix the boundaries called for, and then determine on
the legal effect of the instrument.
Suppose the controversy had been between the City of Pittsburgh
and the persons claiming under Ormsby, who asserted a right to the
ground under his deed to the river. The city in such a case would
have contended before the jury, that taking the calls of the deed
together, they would limit the conveyance to the lot designated on
the plan of the town, and would not this have been a question for
the jury to determine, under the instruction of the court -- an
instruction, which should lay down the general principles of law in
such a case, and the legal effect that would result from a certain
state of facts, but which should not take from the jury the right
of determining on the limits of the lot from the calls in the deed?
These calls are established by evidence extrinsic of the deed; they
are matters of fact for the investigation of the jury.
In principle, there is no difference between the case under
consideration and questions of boundary, which are of daily
occurrence. It is as much the province of a jury to determine the
limits of a lot in a city or town, as the limits of any tract of
land, however large or small. And if the court, in a question of
boundary, may fix the limits of the grant, and then say what the
legal effect of it shall be, there is nothing left for the action
of the jury.
The deed from Ormsby called for a lot, designated on the town
plat one hundred and eighty-three, bounded by Front Street, the
River Monongahela, and lots numbered one hundred and eighty-two and
one hundred and eighty-four.
The plat of the town which is referred to as containing a
designation of the boundaries of the lot, fixes those boundaries as
satisfactorily as any natural objects could fix them. Front Street
is called for, which lies parallel with Water Street, as the
northern boundary of the lot, and the adjoining lots lying east and
west of it, are named as the eastern and western boundaries.
Page 31 U. S. 511
From this description, can anyone doubt the intention of the
grantor and the understanding of the grantee? Does lot 183, as
marked on the plan of the town, extend to the river? This will not
be pretended, nor that lots one 182 and 184 extend to the river.
The call for the river, then, in the deed in question, is
inconsistent with the other calls in the deed. By the town plat,
the southern boundary of the lot is limited by Water Street, and by
a call for this boundary it is as fixed and certain as the call for
the river. The same may be said of the eastern and western boundary
of the lot. Shall these calls be all disregarded or controlled, by
the single call for the natural boundary?
In a late case this Court decided, that a call in a patent for a
different county from that in which the land was situated, might be
controlled by other calls in the patent. Such was the charge given
to the jury in the court below, and it was sustained by this
Court.
The circuit court therefore, instead of saying to the jury that
the calls in this deed, and the one to Craig and Bayard, were
inconsistent with the dedication of the ground referred to, should
have instructed them, that the different calls ought to be taken
together; and that the calls for the river might be controlled by
the other calls in the deeds, if the jury should be satisfied that
such call had been inserted through inadvertence or mistake.
The fourth and last exception taken to the charge of the court
is that they erred in instructing the jury,
"That if a street or streets leading to the Monongahela River
were necessary to the enjoyment, by the inhabitants, of their
property in the town, derived from persons under whom the plaintiff
claimed, they are entitled to have them laid off over the land in
dispute, of right, and not of favor; and that the law points out a
mode by which this right may be enforced."
This instruction does not involve a point which was material in
the case, and though it were erroneous, it might not afford ground
for the reversal of the judgment of the circuit court. Whether this
right existed or not, it is not conceived how it could have had any
influence with the jury.
The court seem to refer to the law of Pennsylvania, regulating
the opening of public roads. But the establishment of
Page 31 U. S. 512
a public road cannot be claimed as a matter of right. An
application must be made in the first instance by petition to the
court of quarter sessions; a view of the proposed road is directed,
and its establishment depends upon the report of the viewers and
other necessary sanctions.
This law, however, it is insisted, could have no operation in
the City of Pittsburgh; that its streets and alleys are opened and
regulated under the corporate authorities, and not by the
provisions of the road law.
It is not deemed necessary, in deciding the points raised in
this case, to notice all the questions discussed by the counsel in
their arguments at the bar.
Whether Water Street extended to low or high water mark, can be
of no importance in the present controversy. If its southern
boundary be limited by high water mark, it is clear that the
proprietors parted with all their right. It is admitted by both
parties that the River Monongahela, being a navigable stream,
belongs to the public, and a free use of it may be rightfully
claimed by the public, whatever may be the extent of its volume of
water. If Water Street be bounded by the river on the south, it is
only limited by the public right. To contend that between this
boundary and the public right, a private and hostile right could
exist, would not only be unreasonable, but against law.
Tench Francis, the attorney in fact for the Penn family, and the
agent who succeeded him, must be considered, for some purposes, as
the principal in these transactions. His principals were in Europe,
and to his discretion and superintendence they, of necessity,
consigned the management of their property in this country. The
long acquiescence, therefore, in the plan of the town, as returned
by Woods, affords a strong presumption against the right asserted
by the plaintiff below in this action.
The town was laid out in the spring or summer of 1784; no act
was done by the proprietors showing any claim to the land in
controversy, until September, 1814, when the deed to Wilson was
executed. Here is a lapse of about thirty years, within which no
right is asserted by the Penn family, hostile to that which was
exercised by the city, in the use of this ground, to the extent
which its means enabled it to improve,
Page 31 U. S. 513
and the public convenience seemed to require. A title which has
remained dormant for so great a number of years, and while the
property was used for public purposes, and necessarily within the
knowledge of the agents of the proprietors, is now asserted under
doubtful circumstances of right. In some cases, a dedication of
property to public use, as for instance a street or public road,
where the public has enjoyed the unmolested use of it for six or
seven years, has been deemed sufficient evidence of dedication.
This lapse of time, connected with the public use and the
determination expressed by the agent at the time the town was laid
out to dispose of the whole of the manor, affords strong grounds to
presume that no reservation of any part of the manor was intended
to be made; and that the slip of land in controversy was not
reserved. These were facts proper for the consideration of the jury
in determining the fact of dedication. They were calculated to have
a strong influence to rebut the presumptions relied on by the
plaintiff in the court below.
If it were necessary, an unmolested possession for thirty years
would authorize the presumption of a grant. Indeed, under peculiar
circumstances, a grant has been presumed from a possession less
than the number of years required to bar the action of ejectment by
the statute of limitations.
By the common law the fee in the soil remains in the original
owner, where a public road is established over it, but the use of
the road is in the public. The owner parts with this use only, for
if the road shall be vacated by the public, he resumes the
exclusive possession of the ground, and while it is used as a
highway, he is entitled to the timber and grass which may grow upon
the surface, and to all mineral which may be found below it. He may
bring an action of trespass against anyone who obstructs the
road.
In the discussion of this case, the same doctrine has been
applied by the counsel for the defendant in error to the streets
and alleys of a town; but in deciding the points raised by the bill
of exceptions, it is not necessary to determine this question.
Where the proprietor of a town disposes of all his interest in
it, he would seem to stand in a different relation to the right of
soil, in regard to the streets and alleys of the town, from
Page 31 U. S. 514
the individual over whose soil a public road is established, and
who continues to hold the land on both sides of it. Whether the
purchasers of town lots are not, in this respects, the owners of
the soil over which the streets and alleys are laid, as appurtenant
to the adjoining lots, is a point not essentially involved in this
case.
If the jury shall find that the ground in question was dedicated
to the public as a street or highway, or for other public purposes,
to the river, either at high or low water mark, the right of the
city will be established, and the plaintiff in the ejectment must
consequently fail to recover.
Upon a deliberate consideration of the points involved in the
case, this Court is clearly of the opinion that the judgment of the
circuit court was erroneous, and it is therefore
Reversed and the cause remanded for further
proceedings.