USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. IX > Part 57
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This case is not analogous to those to whom Councils have granted relief heretofore. It is known to every man who accepts the appointment of a city watch, that he must necessarily be exposed more or less in the regu- lar discharge of his duties. The cases alluded to, were for limbs fractured and wounds received while perform- ing their duties, and which were beyond their control, and cases of a special nature.
Your committee are well aware that precedents are seized upon to justify future legislation and that due care should be exercised, against improvident expendi- tures, for in establishing a precedent, numerous applica- tions of a like nature will constantly be presented, claiming similar relief. Upon a review of all the cir- cumstances of this case, they are of opinion that the prayer of the petitioner ought not to be granted, and beg leave to offer the following resolution:
Resolved, That the committee in the case of Ezekiel Hand, be discharged from the further consideration of the same.
The Common Council then took up for consideration, the ordinance passed by the Select Council at their pre- vious meeting, for the erection of new market houses on High street, upon which the yeas and nays were call- cd, and were for the passage of the said ordinance, yeas Messrs. Baker, Moss and Oldenburg-3.
Nays-Fritz, Horn, Hood, Leiper, Mayberry, Page, Patterson, Ryan, Sexton, Sullivan, Wainwright and Wetherill-12, and was thus lost.
From the Pittsburg Gazette. OPINION
Of the Supreme Court of the United States, delivered by Mr. Justice M'Lean, at Jannary term, 1832.
Joseph Barclay and others, VS.
)This suit was brought in the Western District of
Richard W. Howell's lessee. S Pennsylvania, to recover a lot of ground in the city of Pittsburg, 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 ship 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 convey- ances 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 al- so to the charge of the Court to the jury. These ex- ceptions are brought before this Court, for consideration, by a writ of error.
The first assignment of error is in substance, that the verdict heing 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 excep- tion 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 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 de- scription is good. The lessor of the plaintiff, on a lease for a specific number of acres, may recover any quan- tity of less amount.
The rejection of the evidence contained in the depo- sitions of Samnel 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 Pittsburg, which at that time, consisted of a small number of settlers, very few, if any of whom, had a title to the lands 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 Pittsburg, Tench Francis, who acted as the attorney of John Penn, jun., and John Penn, addressed the fol- lowing letter to George Woods, Esq.
"Philadelphia, 22d .April, 17 84.
Sir,-By directions of Messrs. Penns, I take the liber- ty to request you to undertake the laying out the town of Pittsburg, 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 encum- brances, in doing of which, be pleased to make the pro- per inquiries, and ascertain the previous claims pretend- ed or real, 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 ef- fect 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 Pittsburg, and also surveyed into out-lots and small plantations, the residue of the manor; and made return to his principal of a copy of the town plat, and the other surveys. This return, and the whole proceedings of Woods, were sanctioned by the following letter:
" Philadelphia, 30th Sept. 1784.
Dear Sir,-As attorney to John Penn, jr. and John Penn, Esquire, late proprietors of Pennsylvania, I here- by approve of the plan you have made of the town of Pittsburg, and now confirm the same, together with the division of the out-lots, and the other part of the manor of Pittsburg.
The several appliers, agreeable to your list furnished me, may depend on having deeds for their lots and plan- tations, whenever they pay the whole of the purchase money, &c.
George Woods, Esq."
TINCH FRANCIS.
* For the decision and charge in this case in the Eas- tern District Court, see Register, Vol. IV. page 225.
1832.]
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The original plat of the town of Pittsburg, which was made by Woods, was givenin evidence to the jury; from which it appears, that the town was laid out into lots, streets, and alleys, from the junction of the Alle- gheny 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 above 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 the narrow slip of land, the fact of dedication becomes material. From the plan of the town, it does not appear, that any artificial bounda- ry, as the southern limit of Water street, was laid down. The name of the street is given, and its northern boun- dary, 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 other part of the return of the surveyor, that Water street did not extend to the river, as it appears to do, by the face uf the plat.
The depositions of Ewalt and Finley were offered by the defendants, to prove the declarations of Woods, at the time the survey of the town was made. Ewalt stat- ed, 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 being made, by sove- ral 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 pub- lic for ever.
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 plea- sure." Several objections are made to the competency of this testimony.
It is insisted, that the declarations of Woods, respect- ing 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. Ile 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 every thing, 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 are 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 wassubsequently given, cannot be extended, beyond what appears upon the face of 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 princi- pal had been present. So far as valuations had been made, the lots 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 ap- peared upon the face of the return. Nor, if the agent
had attempted, by any covert means, to give to the citi- zens of the town, ground, which he did not designate on his return, and which did not tend, directly, to in- crease 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 acquies- cence, 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 limit to the width of Water street, short of the river, on the south. If a line had been drawn along its south- ern limit, there would have been great force in the argu- ment, that the ground between such limit and the wa- ter 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 authori- ty, 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 gesta; 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 bounda- ry, and governed by the same rules of evidence, which are of daily application in such a case. In this view, were nor the declarations uf the person who fixed the boundary, Jegal 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 ad- mitted by the Circuit Court, because, under the cir- cumstances, 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 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 Coate's de- position is abandoned.
Several exceptions were made to the charge of the Court to the jury.
"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 he capable of being used as such; and 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 fami- ly, at the time the town was laid out, it is a clear propo- sition, that such parts of the land as were not conveyed to the purchasers, or dedicated to the public, remain- ed 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 er- roncous.
From the evidence in the cause, it appears that the northern bank of the Monongahela, from its junction with the Allegheny, to the extent of the town plat, is clerated, in many places; it not having yet been improv- ed, so as to admit of an easy approach to the river. Some of the streets leading south have been extended to the river, and some of the squares have been so gra- duated and paved, as to reduce to an inclined plane, the ground from the northern limit of Water street to the river.
When complaint was made to Woods, that Water street would be too narrow, he observed, that its width
204
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PITTSBURG LAW CASE.
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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 pur- pose, 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 re- gards other streets in the town. Suppose Market street, or Wood street, leading north and south, had not been improved, by the city of Pittsburg 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 were about to inquire into the fact, it is admitted, that their not having been im- proved or used as streets, would be a circumstance which the jury might weigh, against the proof of dedi- cation. 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 dedica- tion. This appears to have been the purport of the in- struction 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 Pittsburg 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 were required to find, against the right asserted in hehalf of the city, unless the ground referred to, had been used as a street or high- way. 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 impos- ed, 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 er- ror 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 ex- istence or non-existence of which, was not inconsistent with the principal fact.
It was not essential for the city to show, that the en- tire slip of land referred to, had been used as a street, but it was essential to establish, that it had been dedica- ted 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 corpo- ration, were altogether inconsistent with the right as- serted in behalf of the 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 rightto recover."
The inference drawn in the conclusion of this assign- ment of error, may not be fully sustained by the lan- guage of the court; but they did instruct the jury, that the acts of "ownership exercised by the corpora- tion, 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 regula- ted and preserved by the corporation, and could not le- gally be treated and used, as private property, by that body."
The Court here refer to certain wharves, which have been constructed by the city along the Monongahela, and on the ground claimed to be Water street. Con- nected with these wharves, is a graduated pavement, so as to render access to them, from the city, easy; and a tax is imposed on steam-boats 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 cor- poration, 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 im- posed 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 con- dition. The wharves cause no ohstructions to the use of this ground, as a street; and whether the city author- ities have transcended their power in raising a revenue from it, 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 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 cases might have tended to show, that the dedi- cation 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 dedica- tion of a space south of the Water streets 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 the fifth day of November, in the year of our Lord one thousand seven hundred and ninety-eight, and was for "a certain lot of ground, situate in the town of Pittsburg, aforesaid, marked in the plan of said town, number one hundred and eighty-three, bounded hy Front street, the river Monongahela, and lots numbered one hundred and eighty-two, and one hundred and eighty- four; it being the same lot or piece of ground, which the honorable John Penn, and John Penn, jr. late pro- prietors 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 the thirty-first day of December, one thou- sand seven hundred and eighty-four; 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 Alle- gheny, in the town of Pittshurg, marked in the general plan of said town, made hy Col. Woods, numbers one, &c. which said plan is recorded, or intended to be re- corded, in the office for recording of deeds for the county of Westmoreland." The said lots are hounded, northwardly, by the said Allegheny river; eastwardly, by Marbury, or Mulberry street; southwardly, by Penn street, and'southwestwardly, by the Monongahela river."
The agreement under which this deed was executed, is dated on the twenty-second day of January, seven- teen hundred and eighty-four; which was about six months before the town was surveyed. By this agree- ment, the Penns sold to Craig and Bayard, "a certain tract of land, in their manor of Pittsburg, laying and be- ing in a point formed by the junction of the rivers Mo- nongahela and Allegheny, bounded on two sides by the rivers aforesaid," &c.
As this last deed covers ground which had been sold
.
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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 execut- ed 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 was 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's 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 decd.
The deed from Ormshy, called for the lot by its num- ber, as marked on the plan of the town, and bounded by Front street, the river Monongahela, and lots numbered one hundred 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 were 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 to instruct the jury, 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 deter- mine on the legal effect of the instrument.
Suppose the controversy had been between the city of Pittsburg and the person claiming under Ormsby, who asserted a right to the ground, under his deed, to the river. The city, in such a case, would have con- tended, 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, un- der 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 cer- tain 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.
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