
    Kaufmann, Appellant, v. Philadelphia.
    
      Road Haw— Widening street — Title to land — Dedication—Deed— Damages,
    
    1. Where a lot 137 feet deep abuts on a street sixty-six feet wide, and the city by ordinance widens the street to seventy-two feet, by taking a three feet wide strip on each side, but providing that existing buildings shall not be affected until altered or re-built, and thereafter the owner conveys the land by deed in which it is described as 131 feet deep on a seventy-two feet wide street, and the grantee in turn conveys the land by the same description to another person, such third grantee can claim no damages for the widening when he re-builds according to the building line of the widened street. In such a case the first deed made the three feet wide strip a part of the street as effectually as a formal dedication to the use of the public could have made it.
    2. The fact that the coping and steps of the building extended onto the strip of land included in the widening of the street is unimportant as affecting the rights of the parties, if the encroachment was not beyond the limits of the usual permissive use of city streets.
    Argued Jan. 10, 1.912.
    Appeal, No. 13, Jan. T., 1911, by plaintiffs from order of C. P. No. 3, Pbila. Co., June T., 1905, No. 2168, refusing to take off non-suit in case of Morris A. Kaufmann, et al., Executors, Etc. v. City of Philadelphia.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Davis, J.
    At the trial the plaintiff made the following offer:
    “Mr. Carr: I offer to prove by this witness that, in accordance with the Ordinance of 1886, he, as the surveyor of the third district, in which this property is located, prepared a plan of the street, showing the buildings that would be affected by the widening; that the plan so prepared by him shows that the property on the southwest corner of Thirteenth and Arch streets and the buildings thereon were affected by the widening; that on the three foot portion of the property between 134 feet and 137 feet there was erected a portion of the building which was there prior to the Ordinance of 1886; that the plan shows that this portion of the building would be affected by the taking of the three feet necessary in the widening; this to be followed by other testimony showing that the plaintiffs, when given possession of the property, had possession of the whole 137 feet, and continued in that possession until they began to rebuild, when, in accordance with the Ordinance of 1886, they had to recede three feet, that is, they were given the building line as 36 feet from the center of the street. I also offer to prove by other witnesses that this portion of three feet of the lot is of great value, and was worth at the time of the taking over $5,000.
    “Mr. Gibbons: This offer is objected to, because the deed offered in evidence on behalf of the plaintiffs recites the property purchased as follows: ‘All that certain lot or piece of ground, with the buildings and improvements thereon erected, described according to a survey made thereof by W. C. Cranmer, surveyor and regulator of the third survey district of the city of Philadelphia, on the 9th day of October, A. D. 1895, as follows, to-wit: Situate on the south side of Arch street (as widened to the width, of 72 feet) and west side of Thirteenth street, in the • ninth ward of the city of Philadelphia, containing in front or breadth on the said Arch street 60 feet and extending of that width in length or depth southward along the west side of said Thirteenth street 134 feet to the north side of Cuthbert street, bounded northwardly by the said Arch street, eastward by said Thirteenth street, southward by said Cuthbert street and westward by ground now or late of William Sansom,’ said deed being dated February 17, 1902, and recorded in Deed Book W. S. V. No. 35, page 198.
    “The Court: It appears from the deed of the St. George’s Hall Society to Henry Charles Lea, dated December 23, 1895, that the grantee in that deed took title to a lot of ground 134 feet in depth, fronting on Arch street as widened to the width of 72 feet. This description is carried in the deed from Henry Charles Lea to Morris Liveright and Benjamin F. Greenwald, dated February 17, 1902, the grantees in that deed being the plaintiffs in the case at bar. It would seem, therefore, that the plaintiffs did not take title under the deed from Lea to Livei’ight and Greenwald to the three feet of ground for which they now claim compensation, by reason of the alteration of the building and the widening of Arch street to the width of 72 feet, as set forth in the Ordinance of 1886. For these reasons I sustain the defendant’s objection.
    Exception for plaintiffs. [3]
    The court entered a compulsory non-suit which it subsequently refused to take off.
    
      Errors assigned were (1) refusal to take off non-suit and (3) ruling on evidence quoting the bill of exceptions.
    
      William, A. Carr, with him W. Horace Hepburn and Sidney L. Krauss, for appellants.
    Appellants took title to the three foot portion of the ground with the portion of the improvements thereon erected. According to the rule of law announced in all the cases, a conveyance of land bounded on a street gives to grantee a title to the middle of the street if the grantor himself had a title to it, and did not expressly or by clear implication reserve it: Paul v. Carver, 24 Pa. 207; Fitzell v. Philadelphia, 211 Pa. 1; Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92.
    The mention in a deed, by name, of a street which is upon the city plan, but unopened, does not amount to a dedication to the public use of the grantors’ title to the soil of the street: Forbes St., 70 Pa. 125; Brooklyn St., 118 Pa. 640; Neely v. Philadelphia, 212 Pa. 551.
    
      
      Henry J. Gibbons, assistant collector, with him Edwin O. Lewis, assistant city solicitor, and Michael J. Ryan, city solicitor, for appellee.
    Appellants are estopped by prior dedication in this case. This dedication is proved by appellants themselves in the three deeds offered by them to show the chain of title: Griffin’s Appeal, 109 Pa. 150; Weiss v. So. Bethlehem Borough, 136 Pa. 294; Richardson v. McKeesport, 18 Pa. Super. Ct., 199; Cotter v. Philadelphia, 194 Pa. 496.
    Where a property owner draws back his property line, the abandoned space comes under the jurisdiction of the municipality for all its future use, public or otherwise, if no reservation is made by the donor: Bornot v. Bonschur, 202 Pa. 463; Waters v. Philadelphia, 208 Pa. 189; Forsythe v. Philadelphia, 211 Pa. 147; Higgins v. Sharon Borough, 5 Pa. Super. Ct. 92; Munn v. Sharon Borough, 5 Pa. Super Ct. 103; Richardson v. McKeesport, 18 Pa. Super. Ct. 199; Story St., 11 Phila. 456; Wickham v. Twaddell, 25 Pa. Super. Ct. 188; Carroll v. Asbury, 28 Pa. Super. Ct. 354; Forsythe v. Philadelphia, 211 Pa. 147; Bornot v. Bonschur, 202 Pa. 463.
    March 18, 1912:
   Opinion by

Mr. Chief Justice Fell,

Arch street, in the city of Philadelphia, was originally laid out and opened of the width of sixty-six feet. In 1886 the city by ordinance directed the widening of the street to seventy-two feet, three feet to be added to either side. The ordinance was not to apply at once to properties on which buildings were erected, but all new or altered buildings were to be placed back on the new line established. At that time the St. George’s Hall Association was the owner of a lot with a building thereon, at the South-west corner of Arch and Thirteenth streets, sixty feet in front on Arch street, which was sixty-six feet wide, and extending south on the line of Thirteenth street, one hundred and thirty-seven feet. In 1895 the Association conveyed this lot to Henry C. Lea by deed, in which it was described as being on the South side of Arch street as widened to the width of seventy-two feet and containing in front or breadth on Arch street sixty feet and extending of that width southward along the west side of Thirteenth street one hundred and thirty-seven feet, bounded northward by said Arch street, and eastward by the said Thirteenth street. In 1902 Mr. Lea conveyed the property by deed containing the same description to the plaintiffs, who desiring to rebuild, receded three feet in accordance with the ordinance of 1886. This proceeding was to recover the value of the strip of ground three feet in width included in the street by its widening. At the trial a non-suit was entered.

The contention of the appellants is that under the well established rule of law that a conveyance of land bounded on a highway gives the grantee a title to the middle of the highway, if the grantor himself had title to it, and did not expressly or by clear implication reserve it, they acquired title to the strip of land three feet wide on the Arch street front, and cán recover of the city the loss occasioned by being required to recede three feet when they rebuilt. This contention could be sustained if they had bought a lot one hundred and thirty-seven feet in depth, bounded by a street sixty-six feet in width. But in the deed to them and the deed to their grantor, the lot is described as “situate on the South side of Arch street, as widened to the width of seventy-two feet,” and the three feet' taken from the south side of the street is deducted from the depth of the lot. The right the plaintiffs acquired to the land in question was to its use as part of the highway, in. common with the general public, with the rever-, sionary right to the land as a part of the bed of the street in the event that the street should be vacated. This was all their grantor possessed and all that he conveyed to them. The St. George’s Hall Association in 1895 established a new line as the northern boundary of its lot that conformed with the ordinance of 1886 and conveyed according to it. As between the Association and its grantee the three feet at the northern end of its lot was made a part of the street, as effectually as a formal dedication to the use of the public could have made it: Bornot v. Bonschur, 202 Pa. 463; Forsythe v. Philadelphia, 211 Pa. 147. The plaintiffs, therefore, lost nothing and had no right to recover.

The fact that the coping and steps of the building extended onto the strip of land included in the widening of the street is unimportant as affecting the rights of the parties, since the encroachment was not beyond the limits of the usual permissive use of city streets.

The judgment is affirmed.  