Evening journal., 1922-07-22
PART OF BAYARD
AVE. NOT STREET
Portion From Front to Sec
ond Not Accepted by City,
Court Rules
CHANCERY
SUIT DISMISSED

That Bayard avenue between Lam
caster avenue and Second ST., is not
public street is held by Chancellor
Wolcott in an opinoin handed dowr
by him in dismissing the case Of
Joseph Kelly against William c
Phillips.
Concluding his opinion. the Chan
cellor stated: 1.-The result of the fore
going is that Bayard avenue from
Lancaster avenue 10 Second street
is not now a public street: that the
complainant. as a member OF the
public. has no right to the enjoyment
Of the same as a street. nor has he
any private right of easement over
the same by virtue OF any implied
covenant incident to his title"
The Chancellor ordered that a de-
cree be entered Diminishing the bill
and assessing the costs on the COM
plainant.
Robert G.. Hartman was solicitor
for the complainant and William s.
Hilles was solicitor for the defend
ant.
The bill was filed by Joseph KEEL
! ~, owner OF the lot at the north
| east corner OF Lancaster and Bay
ard avenues. which extends back TO
Second street. against William c.
Phillips, owner OF the lot at the
northwest corner of Lancaster and
Bayard avenues, and claimant to the
unopened bed Of Bayard avenue
from Lancaster avenue to Third
street.
Mr.. Phillips claim to the bed OF
the street was under a deed made
, 10 him by the administrator OF JOS
eph Pyle, deceased who was owner
OF all the property, which he
brought into Wilmington in 1885.
before which time the houses on
both lots were built.
The complainant produced evil
dence that all deeds to any property
on the north side Of Lancaster ave-
nue. in the vicinity Of Bayard ave-
nue. used that avenue as a boundary
or as a starting point from which to
locate the starting point OF property
decided. The complainant claimed
that where a person makes a decd
conveying a lot bordering on the
street. whether that street be open
ed or not, he thereby dedicates the
street to the public and covenants
with the grantee that there is such
street. and the grantee shall have a
right to use the same. and the
grantor is stopped from denying
that there is such a street.
Chancellor Wolcott stated: "If II
be assumed that the conveyance OF
land described as bordering upon an
open street laid out on a city map
may be said to constitute a dedi-
cation of the street to the public.
and II is well established inADela-
ware that such dedication is not
complete until the public has ac-
cepted the same through the action
Of the duly constituted authorities
or by public user" He cited Fulton
VS.. Dover, s Houston IS. and Attor-
ney General vs.. Chalfont. 10 At
lantic 663, affirmed by the Supreme
Court
The evidence establishes very
clearly" the Chancellor stated. that
the public has never made use of
Bayard avenue from Lancaster ave
nue. 10 Third street; there has there
fore. been no acceptance OF the sun
posed dedication by public user Of
the street"
The Chancellor found that the
acts emphasized as indicating an
acceptance by the the city are the ,
plotting OF the street on the city
map, the defining OF the width OF
the street and grade and curb
lines. the laying OF a water main
connection 3 feet six inches from
the north line OF Lancaster avenue
up the middle Of Bayard avenue.
placing of a stone at a point which
would be the Intersection. cutting
down OF two trees standing on the
sidewalk OF Lancaster avenue IN
front OF Bayard avenue. and the lay
ng OF circular curbs at both corners
IF Lancaster and Bayard avenues.
The Chancellor held that all the
acts of the city with respect to Bay
ard avenue appeared to have been
lone solely wit hrespect to the ac-
lulsition OF Bayard avenue as pub
ic street at some future day.
As to the contention of the COM
plainant that by the reference in {
III deeds to Bayard avenue as !
street he held; But in the view
take OF this case am not called 5
ipon to consider the question hold {
ng as I do that there was a dedica- $
ion. the essential element OF accept c
nee by the city is lacking; essential, S
mean. before the public can claim
he street. same never having been
used as SUCH
In regard to the contention that
he grantee in deed has a right to
49, a street referred to in the
ICED. the Chancellor held that there
; no implied covenant in favor OF the
that she shall have he !
light of way over the bed Of Bayard {
venue.