Source:Court-affirms-old-principle/content
City councils have no power to declare vacant any street originally dedicated to the public by the owner of the plan of lots which contains the street. This was the decision made yesterday by Judge Robert S. Frazer in the case of Malachy O'Donnell against the city, the McConway and Torley Company and the H. K. Porter Company. The court issued a permanent injunction restraining the H. K. Porter Company from occupying Forty-ninth street from Harrison street to the Allegheny Valley Railroad Company's tracks. Some months ago councils vacated the street, the H. K. Porter agreeing to pay the city $2,000 compensation. At that time property owners of the neighborhood protested, and after councils acted Malachy O'Donnell went into court to secure an injunction against the H. K. Porter Company. This company intended to enlarge its works and employ several hundred more men.
City Solicitor Charles A. O'Brien read the text of Judge Frazer's decision yesterday and said:
"That is old law. Several times as city solicitor I have said that councils could not legally vacate any street which was originally in a plan of lots of which the owner dedicated the streets to public uses. It is different with a street or alley located, opened and improved by the municipality. Such a street can be vacated. The law is so well known that the city did not defend the suit in this case. The H. K. Porter Company's counsel defended it."
In giving his decision Judge Frazer says that George A. Bayard many years ago put a plan of lots on the market, running from Forty-ninth to Fiftieth street. The purchase of the lots abutting on streets in the plan operated as a dedication of the streets to the public use and was a grant or covenant that the streets should be open forever. The court says the rights of property owners, who bought lots in plans, to the perpetual use of the dedicated streets always have been sustained. The judge also says that it would be different had the borough of Lawrenceville or the city of Pittsburgh laid out and opened the streets and the lots were afterwards included in a plan of lots. In accordance with this last principle, Judge Frazer yesterday dismissed the suit of Gertrude M. Tesson against the H. K. Porter Company, to prevent the occupation of Hurlbut [sic] alley, between Forty-ninth and Fiftieth streets. It appears that the alley had been laid out and opened previous to the sale of lots; the borough of Lawrenceville had complete control over it and the city, of course, inherited the rights of the borough.
Although, as Mr. O'Brien said, all this is old law, it is suspected that in many cases of vacations of lot-plan streets the property owners did not know their right and therefore there will be a looking up of old lot plans. East of Stanton avenue along the Allegheny river, the American Bridge Company owns 12 acres of land, which it has abandoned for manufacturing purposes. Two streets were vacated through this tract and old manufacturing buildings occupy the space. Several property owners of the neighborhood yesterday, after Judge Frazer's opinion was handed down, decided to look up the records to ascertain if they might not go in to court and have the vacation of the streets declared illegal, in case the highways were dedicated to public use in plans that are on file.
