An Action In Equity to Prevent Obstruction of a Street

In Capozzi v. Cummins, 191 Pa. Super. 500, 159 A.2d 536 (Pa. Super. 1960), Michael J. Capozzi and Anthony E. Capozzi (the Capozzis) brought an action in equity against Clifford D. Cummins and his wife (the Cummins), to prevent the Cummins' obstruction of Water Street. The Cummins denied that Water Street was a public street because it was not accepted by the Borough of Canonsburg within 21-years of its dedication. Other than the ordinance and plan, there was no official record of either opening or vacating that portion of Water Street in question. The testimony of several witnesses disclosed that in more recent years, the occupants of dwellings which fronted on Pike Street had built garages on the rear of their lots and that their only means of access was to travel on Water Street. Stables were established on some of these lots which were limited to access along Water Street. Coal houses were erected on the rear of other lots for a period of time and service was obtained through Water Street. The Borough engineer testified that Water Street was used by the public generally as a public thoroughfare. the trial court dismissed the complaint and held that there must be evidence of municipal acceptance and maintenance as a public road within 21 years of dedication in order to establish a public street. In Capozzi, the Superior Court reversed: "In the absence of a statutory restriction or prohibition, it is generally held that acceptance by the public may be shown by long-continued use without any acts or conduct on behalf of the municipal corporation." Capozzi, 159 A.2d at 539. With regard to the trial court's reliance on the Act of 1889, May 9, P.L. 173, 36 P.S. 1961 (the predecessor to Section 1724 of the Borough Code, 53 P.S. 46724), which limited the Borough's acceptance of a dedication to twenty-one years, the Superior Court stated: The Court cannot see the application of this provision of the law. If, as the ancient documents show, there has been an acceptance by the public through use, acceptance is an accomplished fact and the statute would have no application. Such acceptance was, in fact, made by the public long before the Act of 1889 came into existence. Furthermore, this Act relates to streets and roads in town plots or plans of lots and not to the situation which is presented in the instant case. Capozzi, 159 A.2d at 539.