#### Lehigh Street, Borough of Easton’s Appeal.

1. Under an act of Assembly a street was laid out in Easton over land of Rinek. He afterwards sold lots of the land calling for the south side of the street as a boundary. Subsequently the street was opened. *Held,*that the

frantees had title to the fee to the centre of the street, and were entitled to amages for the opening of the street. '

2. The grantee of a town lot abutting on a street opened for public use takes a fee to the centre, although the description adopts the sides as the boundary. •

3. Cox *v.*Freedley, 9 Casey, 127; Paul *v.*Carver, 2 Casey, 223, followed; Union Burial Ground *v.*Robinson, 5 Wharton, 18, distinguished.

March 20th, 1872,

before Thompson, C. J., Read, Sharswood, and Williams, JJ., Agnew, J., at Nisi Prius.

Certiorari to the Court of Quarter Sessions of Northampton County. In the matter of the assessment of damages for the opening of Lehigh street, in the borough of Easton.

On the 2d of June, 1870, the petition of A. J. Kneelit and Elizabeth Butz was presented to the Court of Quarter Sessions of Northampton County, setting forth that, by reason of the opening of Lehigh street through their land, they had sustained damage, and praying the court to appoint viewers to assess such damage.

Viewers were accordingly appointed, who, on the 23d of August, returned that they had assessed the damages at six cents.

*86The petitioners filed exceptions to the return; the fifth, which was the principal exception, was:

“ That the viewers determined that the petitioners had no title to the land, nor any part thereof, taken up by said street, nor ever had any title ; hut that they would acquire title to the middle of said street, if said street at any time should be vacated, and, therefore, the viewera allowed only six cents damages.”

The court heard the exceptions on depositions and set the report aside: Longaker, P. J., delivering the following opinion:

“ It is manifest, from the depositions, that the viewers in the assessment of the damages acted under the belief that the petitioners had no estate in the lands occupied by the street. To determine this question involves an interpretation of the deeds of the petitioners. That they take to the centre of the street there can be no doubt. The cases of Cox *o.*Ereedley,'9 Casey, 127, and Paul *v.*Carver, 2 Casey, 223, clearly interpret the language of the grant and the intent of the grantor.

“ The case of theUnion Burial Ground *v.*Robinson, 5 Wharton, 18, can no longer be considered unquestioned authority. While it stands unreversed it has been so restricted as not to apply to a case like the present. It is there said if the street had been opened before its vacation a different question might have been presented. The street here has been opened, and that different question is now presented, and, based upon the recent decisions, it must be held that the petitioners take' by thpir deeds a fee simple to the centre of Lehigh street, subject to the right of way over it. By the deed all unpaid or unassessed damages arising from the opening of the street passed to the petitioners. The viewers, therefore, assessed the damages under an erroneous opinion of the rights of the petitioners to the land lying within the street as opened. The report is set aside, and alias viewers will be appointed upon the original petition.”

The-viewers under the alias order reported, January 18th, 1871, that they had assessed to A. S. Knecht and Elizabeth Butz, tenants in common, $395, as the damages sustained by them by reason of the opening of Lehigh street through their premises.

The borough of Easton filed exceptions to this report, of which the following are the principal:

1. The viewers erred in allowing any damages to the petitioners for the occupancy of a portion of the land and premises of the petitioners, because in truth and fact no portion of the land and premises of the petitioners was occupied by *87the opening of Lehigh Street from Walnut Street to Eighth Street, as is alleged in the petition.

2. The viewers erred in allowing the petitioners any damages whatever, for the reason that the petitioners are not the owners of any land through which said Lehigh Street was opened.

The parties afterwards agreed to submit the questions under the exceptions to the Court of Quarter Sessions in a case stated which embodied the following facts:

By act of April 15th, 1871 (Pamph. L., 711), the town council of Easton were authorized to cause a survey to be made of that portion of the borough not embraced in the original town plot, and cause to be marked thereon the necessary streets and alleys according to which the same shall be built upon, etc., and the survey should be recorded in the recorder’s office.

Jacob Rinek, on the 13th of September, 185.6, became the owner in fee of a lot of land in Easton not embraced in the original town plo't. In pursuance of the act of 1851, a survey was made on wThich, amongst others, Lehigh Street was laid out over the above-mentioned premises of Jacob Rinek.

On the 4th of April, 1860, and subsequently to the laying out of Lehigh Street, Rinek conveyed to Mary Worman in fee, part of said premises, “ Beginning, etc.,- on- the north side of the Bethlehem road, thence north along, etc., to *Lehigh*Street, *thence east along the south line of said*street,” etc. By divers conveyances, Abraham J. Knecht and Elizabeth Butz, on the 25th of October, 1869, became the owners of this lot as tenants in common in fee.

On the 16th of May, 1863, Rinek conveyed to Francis Alsfeldt in fee, a lot, part of his above-mentioned premises, “ Beginning at the east line of a lot belonging to Mary Worman, thence, etc., to a private alley, thence northwardly along the west side of said alley, etc., *to the south line of Lehigh*Street, *thence*westwardly, etc., to the said east line of said Mary W'orman’s lot,” etc. By divers intermediate con-' veyanees the said Abraham S. Knecht and Elizabeth Butz, on the 25th of October, 1869, became the owners of this lot as tenants in common in fee.

Knecht and Butz conveyed portions of these lots to other • persons prior to April, 1870, when the borough council, by virtue of authority under the act of 1870, directed that Lehigh Street should be opened, they still retaining parts of said lot bounded as aforesaid on. Lehigh Street, which was opened according to the aforesaid direction of council.

In 1868 Jacob Rinek died intestate, and the portion of his above-mentioned real estate, not conveyed to Mary Worinan *88and Francis Alsfeldt, by proceedings in partition, etc., became the property of his sons, John, Henry, and Thomas, •who were seized of it at the time of the opening of Lehigh Street, and continued so seized.

Since the conveyance to Mary Worman and Francis Alsfeldt, a fence, extending east and west along the whole distance of their premises, and those claiming under them, has stood on the south line of Lehigh Street, and was so standing when that street was opened.

The portion of the premises remaining in Rinek as above mentioned was situated on the north and east of' the premises conveyed to Mary Worman and Francis Alsfeldt, and directly bounded the same.

It was agreed, that if the court under the facts in the ease stated should be of opinion that the petitioners were entitled to damages, the report of the alias viewers should be confirmed absolutely; if otherwise, the report should be set aside and the petition, etc., dismissed.

The Court of Quarter Sessions dismissed the exceptions and confirmed the report of the viewers under the alias order, absolutely.

Longaker, P. J., delivered the following opinion :

“ Numerous exceptions have been filed to the awards, but by facts agreed upon, the only question presented for decision is, whether or nob a cause of damages has accrued to the petitioners.

■ “ The petitioners purchased their lots after the projection of and before the opening of Lehigh Street for public use. The street was laid out and ordained by the borough to become a public street, and a draft thereof filed iu the Court of Quarter Sessions, but was not to be opened except by a ■future ordinance. The lots conveyed to the petitioners are described as running to and abutting along the line of Lehigh Street. The question here arises, did the grantees take such an interest in any portion of the land lying in the street as will entitle them to damages by reason of the open-. ing of said street for public use ?

“ The doctrine asserted by the exceptants, that the grantees of .Rinek do not take a fee to the centre of the street by reason of their deeds, but by the operation of law, seems to be fallacious. It is good law, as well as sound reason, that the grantees take and enjoy no other estate than that which was intended to be granted by the vendor. It is admitted that as soon as Lehigh Street was opened for public use, *eo*instanti, the vendees took a fee to the centre of the street, subject to the servitude of the right of way ; but it is contended prior to that instant, the reversion, in the event of *89the vacation of the-projected street, remained in the grantor. Adjudged by the Union Burial Ground *v.*Robinson, 5 Wharton, 18, this latter proposition must be sustained. This decision has been qualified and so much restricted by Cox *v.*Freedley, 9 Casey, 127, and Paul *v.*Carver, 2 Id., 223, that it ceases to be of any value in its application to the case at bar. It stands alone, if still to be considered an authority at all, upon the narrow ground, that in the event Lehigh Street had been vacated before it was opened for public use, the reversion would have-been in the original grantor. That case admits that ‘ if the street had been opened before its vacation a different question might have been presented.’ Lehigh Street has been opened, and that different question is now presented for decision, and it is ruled by Cox *v.*Freedley, and Paul *v.*Carver. These cases establish the doctrine, that the-grantee of a town lot abutting on a street opened to public use takes a fee to the centre thereof, although the description adopts the sides of the street as the boundary.

“If the Union Burial Ground *v.*Robinson be taken to be an authority still-in force, its only value is to create a possibility of reversion in the grantor, which was extinguished the vei’y instant Lehigh Street, was dedicated to public use. Prior to this dedication no cause of action for damages had arisen ; and *eo instanti*with the cause of action happened the contingency which vested the fee in the petitioners. The incontrovertible fact is that the opening of the street for public use, the right-of action for damages, and the vesting of a fee in the petitioners to the centre of the street are simultaneous acts.'

*“*It is said by the exceptants that the petitioners have no cause of action, because the moment the street was opened they became possessed of two things they did not have before. First, a right of way over the street; and secondly, the fee to the middle thereof, so that they may use it exclusively underneath, and in the event of its vacation, they will obtain the use of the surface. As regards the advantages, they were exclusively for-the viewers. Our only inquiry is, had the petitioners such an interest as entitled them to a jury of view to assess damages; the question of advantages and disadvantages was for the viewers alone. If the damages assessed are excessive, as the case is now presented we cannot reach it. The Rinek heirs clearly had no cause of action until the street was opened, and the instant it was opened they ceased to have a possibility of a reversion. It is not the mere fact of the taking of the ground included in .the street that occasions the damages; but streets frequently, *90by reason of their low- or high grade, or the irregular manner in which they pass through the ground,eause great disadvantage to the lot-owners. These are objects of inquiry for the viewers. For such disadvantages, if they do exist, and for many others, which do only accrue when the street is actually opened, the petitioners could have a good cause of action.”

The borough of Easton appealed from the decree and assigned for error:

"l. Dismissing the exceptions and confirming the report of the alias viewers.

2. Holding that the petitioners had such an interest in the land occupied by the street as that they could recover damages for such occupancy.

*W $. Kirkpatrick*and *H.*Green, for appellants.

Had Lehigh Street not been opened, none of the ground covered by it would have belonged to the petitioners. If they had any title it is by a legal implication, and not by conveyance: Paul *v.*Carver, 2 Casey, 223, and Cox *v.*Freedley, 9 Id., 124, decide that a conveyance of land on the line of a highway opened and in actual use, carries the fee to the.centre where there is no express reservation to the *contrary.*Those cases were different from this, because the question arose as to the title after the highway was vacated, and because here the contest is but for damages for being deprived of the use of the surface. Where a proposed street to which the property extended by the conveyance was never opened, the grantee acquired no title beyond the side of the street: Union Burial Ground *v.*Robinson, 5 Wharton, 18. The question here is not as to title but to damages for opening, and as the fee did not vest in the petitioners by mere operation of the deed before the opening, they had no title that could be affected by the opening. There can be no assessment for the value of land taken by a road: Quigley’s Case, 3 Penna. R., 139 ; Newville Road, 8 Watts, 177; McClenachan *v.*Curwin, 6 Binney, 509.

*E. J.*Fox, for appellee.

The street having been laid out by authority of law, and the conveyance calling for it as a boundary to the lots, the title to the soil was to the middle of the street: Paul *v.*Carver, *supra ;*Cox *v.*Freedley, *supra.*

Mr. C. J. Thompson

delivered the opinion of the court, March 30th, 1872.

This case is fully and properly decided in the opinion of the learned judge below, and for the reasons so well assigned *91by him, the decree of the Court of Quarter Sessions is affirmed, and the appeal is dismissed Rt the cost of the appellants.