
    Osterheldt v. Philadelphia.
    
      Road law—Laying out streets according to plan—Act of May 9,1889, P. L. 172—'Referee's findings of fact—Reargument.
    
    On a motion for a realignment in a case where a landowner is seeking - to avail himself of the benefit of the act of May 9,'1889, if the landowner claims that the street in question had been vacated and that its vacation was proved before the referee, and it appears that the referee and the court below had made no finding upon this subject, and it also appears that the Supreme Court’s decision is correct on the facts actually found by the referee, the Supreme Court will refuse a reargument, but will permit the landowner to apply to the court below to open the judgment directed to be entered by the Supreme Court and inquire whether the street had been legally vacated.
    Motion for reargument.
    April 23, 1900:
   Opinion by

Mb. Justice Mestbezat,

This is an application for a reargument of this case and the reason assigned is that the court in’the opinion filed “ignored the effect of the fact proved before the learned referee that the board of surveyors, in 1874, acting under authority of the ordinance of the city councils of 1873, revised the plan of the streets in the locality in question and struck from the said revised plan Preston street as dedicated by Peters (appellees’ grantor).”

We disposed of the case on the facts found by the referee. While the board of surveyors may have omitted Preston street from the revised plan in 1874, thereby vacating it, the fact is not found by the referee and only appears inferentially in the argument of counsel. This was vitally important to the appellees and if, as they now allege, it was proved before the referee and is a fact, and they expected it to be considered by the court below or by tins court, they should have had it found by the referee. The decision of the case is correct on the facts presented for our consideration, and we must, therefore, refuse the motion for a reargument. But as it is now claimed by the plaintiffs that the street was vacated in 1874, by omitting it from the revised plan of streets in that locality we will give the appellees an opportunity to show the fact. Should they succeed in showing that the street was vacated, as tliey allege, it would apparently bring the case within our recent decision of Wetherill v. The City of Philadelphia, in which we have held the property owner is entitled to recover damages.

The motion for a reargument is refused, with leave to the appellees to apply to the court below to open the judgment and inquire whether Preston street was legally vacated by a revision of the plan of streets in 1874 in pursuance of an ordinance of the city councils.  