Commonwealth v. Shoemaker

Opinion by W. D. Portee, J.,

The indictment in this case charged the defendant with erect *202 ing and maintaining a public nuisance in the form of a building in a public highway in the village of Clarkstown, Lycoming county. The commonwealth produced evidence which clearly established that John Opp, being then the owner of a large tract of land, in the year 1860 caused the said tract to be surveyed and plotted and laid out into lots fronting upon streets and alleys running over the land. In 1866 John Opp died, having first made his last will and testament, in which he referred to the said plan of lots and devised certain of the lots, designated by numbers upon the plan, to his daughter Phoebe, and in the description of the boundaries of said lots called for a frontage upon the fifty feet wide street, which is the subject of this controversy. The remainder of the tract he devised to his daughter Charlotte, who, in 1867, sold a part fronting upon the southern side of the street to Jared Dewald, and conveyed the same by a deed calling for a frontage upon this fifty feet street. This street, fifty feet wide, was at that time actually opened upon the ground for public travel. It was fenced upon each side and its lines thus clearly defined from end to end, extending from one public road to another, except at a point near the end of the street most distant from defendant’s premises, where the street was to some extent narrowed because of buildings upon a lot which John Opp had sold before dedicating the street. The defendant has acquired title to his premises through Jared Dewald, by conveyances, all of which call for this street as a boundary. Jared Dewald testified that at the time he bought he caused his buildings to be placed at the established line of the fifty foot street and placed a board fence upon his side of the street, clearly defining its limits. Various purchasers have acquired title through Jared Dewald and the devisees of John Opp, respectively, to a large number of lots by conveyances which called for a frontage upon this street. This was clearly a dedication to public use, and as between the purchasers and their grantors each had a right to demand that the street should forever be open to the use of the public. The right passing to the purchaser was not the mere right that he might use the street, but that all persons might use it. Until the street was actually accepted by the public an owner of any one of the lots fronting upon the street might, by a proceeding in equity, have prevented the obstruction of the street by other owners of lots *203 within the plan: Fereday and Pry v. Mankedick, 172 Pa. 535 ; Quicksall v. Philadelphia, 177 Pa. 301 .

The mere dedication of a street to public use by the owner will not make it a public street unless it is accepted by the public, and until there has been such an acceptance an indictment will not lie for the obstruction of such a street. Such a street may, however, be accepted by public user, without the active intervention of the municipal authorities. Where such public user is in pursuance of a dedication by the owner, it requires a much less time to presume an acceptance by the public, than where there has been a mere user without dedication: Commonwealth v. Moorehead, 118 Pa. 344 . In a township the strongest evidence of an acceptance of such a dedication is the assumption of control of a street and the expenditure of public money upon it by the township supervisors. The public might stamp the street as a public highway, however, without the intervention of the supervisor, by the general use of it as such. When a street has been actually thrown open for such use by the owner, and has long been used as a public highway, the rights of the public are not confined to the mere beaten track upon the street, but extend to the lines upon which it was actually opened upon the ground by the owner. In the present case the evidence clearly establishes that this street has been traveled by the public for over thirty years without interruption. In 1869 the township supervisor erected a bridge, in order to make access from one of the public roads to this street easier, and did such further work upon the road as to make a safe and convenient road within the lines of the dedicated street throughout its entire length, and from that time until the present the successive supervisors of the township have maintained that roadbed of sufficient width to meet the requirements of the travel thereon.

Here, then, was a dedication of the street to public use, an actual opening of it upon the ground and fixing its boundaries by unmistakable monuments, followed by the use of the street by the public and an assumption of the control of it as a public highway by the supervisors. There was nothing wanting to constitute a complete dedication and acceptance. In 1898 the defendant built a shed which occupied fifteen feet of the width of the street; that he was an intruder without warrant it is unnecessary to say. The ground upon which this intrusion *204 upon the public street is attempted to be sustained is that the rights of the public are limited to so much in width of street, as was actually worked upon by the supervisors; that the public had only accepted so much of the width of the street as was occupied by the roadbed upon which the supervisors have actually worked. The evidence of the engineer who surveyed the road was to the effect that the roadbed maintained by the supervisors varies from twelve to fifteen feet in width. The supervisors have imposed upon them the duty of keeping the roads safe and convenient for travel. To that end it is their business to maintain such a width of roadbed, within the lines of the road as opened, as to meet the exigencies of public travel. There is no authority given by law to supervisors to fix the width of public highways. It is their business to maintain within the lines of the highway such a width of roadbed as circumstances require. The learned court below adopted the view suggested by counsel for defendant, and charged the jury that if they found “this public street or highway was dedicated to the public by Mr. Opp, and the supervisors accepted it and worked upon it, it would only become a public street or highway to the extent of their acceptance and to the extent of their working upon it.” The substance of the whole charge was to the effect that only such part of the street as the supervisors had actually done work upon became a public highway. The language of the court complained of in the first assignment of error is : “ If you come to the conclusion upon the evidence that the supervisors only accepted thirty-three feet and worked upon it to that extent, the defendant is not guilty of encroaching upon this public road or highway, and could not be convicted.” The supervisors not having any authority to fix the width of streets or roads, it was not for them to say whether this road should be thirty-three feet or fifty feet wide. The owner, had dedicated the property and thrown it open to public use. If the supervisor, because of the exigencies of public travel, recognized this street to be a public highway, he had the right to determine primarily of what width he should make his roadbed within the lines of the highway, but he had no right to abandon any part of the width over which the public had rights. The supervisor was not bound to keep the whole width of the public right of way safe and convenient *205 for travel, but he had no power to surrender the rights of the public to pass over any part of that highway if they desired to do so; he had no right to deprive future supervisors of the power to widen the roadbed to the utmost limits of the street as dedicated, if, in the future developments of the business of that community, such a proceeding should become necessary. The argument directed by the learned court below to the jury, that it would be burdensome upon the townships to permit owners to dedicate wide streets to public use and then require the township authorities to maintain them in good condition throughout their entire width, was manifestly erroneous, for the reason that highways outside of the built up portions of cities are not required to be kept in a smooth condition and safe and convenient for travel throughout their entire width: Monongahela City v. Fischer, 111 Pa. 9 . It is not necessary here to pass upon the question which was involved in the case of Alton v. Neeuwenberg, 108 Mich. 629 , in which it was held that the public authorities might accept part of the length of a street without impressing the character of a public highway upon the remaining portion of its length. For almost thirty years the public had had the right to pass and repass, as they pleased over that part of this street upon which this defendant encroached. It is true that the jury has found that the defendant’s building did not extend into the narrow strip extending along the length of the street which the supervisors had thus far found it necessary to maintain as a roadbed. The owner of the land had dedicated it to public use, had fenced it off and set it apart from his own land for the use of the public as a highway, and all persons who desired to pass along that part of the road had the right to, and, if they wished, did pass over the land upon which the defendant has erected his building. In Commonwealth v. Marshall, 187 Pa. 170 , it was said: “ We are unable to see how a party who admits that a road was opened where it was laid out, and that the roadbed which was then constructed or defined has always been maintained and used by the public since, can lawfully obstruct either.” It thus appears that the Supreme Court clearly recognizes the distinction between the road as opened and the roadbed as maintained for the use of the public. If the obstruction be in the line of either, the nuisance is a public one, and in the case above cited the conviction was *206 sustained. It should be borne in mind that this was not the case of a road, the location of which was uncertain. When a road is opened thirty-three feet in width, and the supervisor who executes the order removes the obstructions and prepares a track for travel, in the absence of marks upon the ground, the roadbed which he thus establishes is presumed to be in the center of the right of way acquired by the judicial proceedings, and when it comes to be widened to thirty-three feet the center of the traveled way will be accepted as the center of the road; but this rule does not apply where this beaten track lies within the limits of the road as laid out by the viewers and clearly defined on each side by marks upon the ground: Furniss v. Furnias, 29 Pa. 15 . “When the order to open is executed by the supervisors, the whole width is to be taken as devoted to the public use, and though it may not at first be entirely cleared out, that may be done afterwards. Opening a road does not consist merely in moving obstructions. When a track has once been made on which the public can pass, the power to make another location is gone, but the right and the duty of the supervisors to extend it to its legal breadth remains in full force. Anything which closes or obstructs a road that has once been opened is a nuisance and may be abated either by the proper officer or by any private citizen: ” McMurtrie v. Stewart, 21 Pa. 322 .

In the present case the rights of the public were acquired not through the exercise of the right of eminent domain and an assessment of damages by viewers, but by dedication upon the part of the owner of a street of a given width. This dedication did not impose upon the public any duty whatever. They might take it or leave it, as they saw fit. The public elected to travel the street. When that travel had reached such proportions as to force recognition by the supervisor that this street was a public highway, the supervisor was no more compelled to maintain the whole width of the street in safe condition for travel, than is the supervisor of a mountainous township compelled to maintain the thirty-three feet of road, which he is required to open, in such condition. Tbp supervisor was simply bound to maintain a safe and reasonably sufficient roadbed, and this seems to have been done. The evidence of dedication and acceptance by the public was conclu *207 sive, and the acceptance-must go to the extent of the dedication and opening up of the street by its owner to public use. The first, second, third, fourth, fifth, sixth and seventeenth specifications of error are sustained.

The points submitted by the commonwealth, the refusal of which are the grounds of complaint in the seventh, eighth, ninth, tenth, eleventh and twelfth assignments of error, are not strictly accurate, in that they entirely leave out of consideration the material fact of the necessity for opening the street, in such a case, after it has been dedicated, in order to constitute it a public highway: Com. v. Royce, 152 Pa. 88 . The assignments of error last mentioned are, therefore, overruled. The first, fourth, fifth and eighth requests for charge presented by the commonwealth ought to have been affirmed without qualification, and the thirteenth, fourteenth, fifteenth and sixteenth assignments of error are sustained.

Judgment reversed and venire facias de novo awarded.