3. Dedication (§ 19*)—ACTS CONSTITUTING-|abutting thereon," and prayed for the apDESCRIPTIONS WITH REFERENCE TO STREETS. pointment of viewers to assess the damages The descriptions of lots, in partition proceedings, by reference to the streets indicated resulting from the appropriation of the lots. on a plan of the lots and in an affidavit of ad- The lots, taken by the company and aggregatverse possession recorded under Act May 31, ing .2921 acres, were separately described 1901 (P. L. 352), by reference to the plan, do and all, with possibly one exception were connot show an intention to dedicate anew to public use the streets named in the plan, there hav- tiguous and lay east of Front street and being been no acceptance of the first dedication; tween it and the river, and between Market but such descriptions were simply used to iden- street on the south and Mulberry alley on tify the property with which the parties were the north. Viewers were appointed, March dealing. 23, 1903, and made an award in favor of the plaintiff. The plaintiff, alleging that these lots were part of a larger tract of land owned by him, filed a statement of his claim in the proceedings to assess damages, and therein averred that the defendant company had entered upon and appropriated its right of way out of a piece or parcel of land described as follows: "Bounded on the south by what was known as Market street in the De

PROPERTY

[Ed. Note.-For other cases, see Dedication, Cent. Dig. §§ 35-47; Dec. Dig. § 19.*] 4. ADVERSE POSSESSION (8_8*) DEDICATED TO PUBLIC USE. Though title by adverse possession cannot be acquired in land dedicated to the use of the public for a street, the rule does not apply unless

the dedication has been accepted.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 14, 27, 43-57; Dec. Dig. § 8.*]

Appeal from Court of Common Pleas, Wash-Hass plan of lots of West Columbia, on the ington County.

Action by A. D. Scott against the Donora
Southern Railroad Company. From a judg-
ment in his favor, plaintiff appeals. Reversed.
Argued before MITCHELL, C. J., and

FELL, BROWN, MESTREZAT,
ELKIN, and STEWART, JJ.

POTTER,

R. W. Irwin, Jas. A. Wiley, and A. T. Morgan, for appellant. T. F. Birch, for appellee.

west by Second street, on the east by the Monongahela river, and on the north by property of the Union Steel Company, containing 7.5852 acres." The statement was traversed by the defendant company, which denied that the plaintiff was the owner of the property described in the statement, and averred that it had not taken or injured by its appropriation any other property of the plaintiff or reputedly his than the block of lots described in its petition for the appointment of viewers.

On the trial of the cause the plaintiff claimed title to the ground covered by the description in his statement. He claimed title to some of the lots through proceedings in partition in the orphans' court and to the remainder of the ground by 21 years' adverse possession. He alleged and offered to show that for more than 21 years he and those under whom he claimed had occupied the property described in the statement filed by him in the case, that they had inclosed it by a fence and had farmed the entire area, including streets and alleys, and that the streets and alleys

MESTREZAT, J. In 1815 Charles De Hass, being the owner of a tract of land on the west bank of the Monongahela river in Washington county, laid out a plan of lots, intersected by streets and alleys, and called it "West Columbia." The plan was duly recorded in the recorder's office of Washington county. Front street extended north and south and was substantially parallel with the river. The next street west and parallel to Front street was Hull alley, and the next street west and parallel to Hull alley was Second street. These streets were intersected at right angles by Market street (farthest were never accepted by, opened to, or used south), Strawberry alley, Chestnut street, by, the public. He therefore claimed that he and Mulberry alley. A. D. Scott, the plain- was entitled to damages for the injury done tiff, obtained title to certain lots in the plan to the whole tract of seven acres by reason on May 8, 1893, by proceedings in partition in of the appropriation for the defendant's right the estate of Mary H. Scott, deceased. On of way. The defendant company denied that November 25, 1901, the plaintiff filed in the the plaintiff had any title to any part of the recorder's office of Washington county a state- property claimed by him, and especially the ment under oath, as required by the act of part occupied by it as a right of way. It apMay 31, 1901 (P. L. 352), in which he declar- pears that the company's appropriation, with ed that he had acquired title in fee by 21 possibly the exception of a part of a lot, lies years' adverse possession to 15 lots in the east of Front street and occupies only the De Hass plan, describing them by number lots in the De Hass plan lying east of that and reference to the streets and alleys of the street. The defendant contended, and the plan. In October, 1902, the defendant com- contention was sustained by the trial court, pany presented its petition to the common that in estimating the damages the jury pleas of Washington county averring that it should take into consideration only the lots had appropriated for a right of way five lots lying east of Front street, that if the plainof ground in the De Hass plan known as West tiff was the owner of the other lots west of Columbia, "reputed to belong to the defend- that street, as claimed by him, they could not ant, A. D. Scott, and the streets and alleys be considered in estimating the damages, that

the lots east of Front street and those west | v. Moorehead, 118 Pa. 344, 12 Atl. 424, 4 of it were physically separated by that street, Am. St. Rep. 599; Downing v. Coatesville and therefore were not so connected or used Boro., 214 Pa. 291, 63 Atl. 696; Oakley v. by the plaintiff as to constitute one piece or Luzerne Borough, 25 Pa. Super. Ct. 425. As parcel of ground entitling the plaintiff to there was no actual or implied acceptance have it all considered in estimating the dam- of the dedication by the municipality, it ages. The court submitted two questions to follows that Front street, dedicated to pubthe jury: Whether the plaintiff was the own- lic use by De Hass, was not a public higher of the lots east of Front street appropriat- way in 1902 when the defendant company ed by the defendant company for its right of entered upon and appropriated the land for way, and, if so, what damages he had sus- its right of way. tained by reason of the appropriation. The jury returned a verdict in favor of the plaintiff, and, judgment having been entered there on, the plaintiff has taken this appeal.

The act of May 9, 1889 (P. L. 173; 2 Purd. Dig. [12th Ed.] p. 1875, par. 39), enacts as follows: "Any street, lane or alley, laid out by any person or persons in any village or town plot or plan of lots, on lands owned by such person or persons, in case the same has not been opened to, or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been, or shall be, laid out." The purpose of the act is to relieve land

The plaintiff, in certain offers of evidence on the trial, proposed to prove: That for upwards of 60 years the land bounded on the south by Market street, on the west by Second street, on the east by the Monongahela river, and on the north by the Union Steel Company property had been inclosed by a fence, substantially as it was in the fall of 1902, at the time the railroad company made its appropriation; that the prop-upon which streets have been laid out by the erty during that period had been used and occupied as one entire property; that during that period no street or alley had ever been opened through the property within the designated boundaries, and the public had never exercised any right of traveling through or over any part of it; that he had been in exclusive and uninterrupted possession of the whole of said property since 1874, and during that time had used, occupied, and farmed the whole of the tract, for the purpose of showing title in him to the entire tract; and that the right of the public to use as highways any streets or alleys laid out in the De Hass plan of lots, embraced within the designated boundaries, had been lost by limitation at the time of the appropriation by the railroad company. The court rejected the testimony and ruled as matter of law that Front street as laid out and designated on the De Hass plan of lots divided the land claimed by the plaintiff into two parts or tracts, and that in estimating the damages the jury were confined to the part of the tract lying between Front street and the river.

In sustaining the objection to the plaintiff's offers of evidence, and holding that the land described in plaintiff's statement was divided into two tracts, we think the learned court erred. The De Hass plan of lots was recorded in 1815. This was a dedication of the streets to public use and operated as a relinquishment of all claims by the owner for damages for the use of the land within the lines of the streets for street purposes; but the municipality was not compelled to accept the dedication, and, failing or refusing to do so and to open the streets upon the ground, they would not become public streets or highways. In re Va

owners, but not opened or used for 21 years, from the servitude imposed. Quicksall v. Philadelphia, 177 Pa. 301, 35 Atl. 609; Woodward v. Pittsburg, 194 Pa. 193, 45 Atl. 91. The act declares, as will be observed, that a street dedicated to public use by the owner of the land through which it passes, if not opened to, or used by, the public for 21 years next after the dedication "shall be and have no force and effect." After the statutory period therefore, if no action has been tak en to subject the street to public use, the servitude imposed by the owner upon his land for such use is removed, and the street is of no force or effect as a public highway. The land is discharged from such servitude, and the dedicated portion of it has entirely lost its character as a public street.

Assuming that the plaintiff could have sustained by proof the allegations of his offer, Front street, dedicated by the owner in 1815, has never been accepted or opened to the public, and therefore the street was not a public highway at the time the defendant company made the appropriation for its right of way. The municipal authorities could exercise no authority over the strip of land dedicated, nor could an indictment be sustained for obstructing it as a public street or highway. Commonwealth v. Shoemaker, 14 Pa. Super. Ct. 194. It is, however, contended by the defendant company, and was the view entertained by the court below, that there was a rededication of the streets in the De Hass plan within 21 years of the appropriation by the description of the lots awarded the plaintiff in the parti tion proceedings in which they were described by reference to the streets, and also by the description of the lots in his declaration of adverse possession made and record

6. BILLS AND NOTES (8 410*)—CERTIFICATE OF | made by her, that she had no recollection NOTARY-EFFECT AS EVIDENCE. of what she did with the notice of protest. and that she had no present recollection as to whether she "sent or gave that notice to John H. Moffitt anywhere, at any time, in any place." In his charge the court instructed the jury substantially that, as corroborating the defendant's testimony denying that he had received notice of dishonor, they could consider the notary's testimony that she had no present recollection of delivering the notice. This part of the charge is the subject of the first assignment of error.

Under Act Dec. 14, 1854, § 1 (P. L. [1855], 724; 2 Purd. Dig. [13th Ed.] 1511), making the official acts of a notary, certified according to law in respect to the dishonor of bills and notes and notice to the drawer, acceptor, or indorser thereof, evidence of the facts therein stated, a memorandum at the bottom of a certificate of protest that the notary had sent notice of protest to the indorser is not evidence that he received the notice, where such memorandum was not a part of the certificate or referred to in it, as the act makes only such official acts evidence as are "certified according to law."

Ed. Note.-For other cases, see Bills and Notes, Dec. Dig. § 410.*]

Appeal from Court of Common Pleas, Washington County.

Assumpsit by B. A. Zollner against John H. Moffitt. Judgment for defendant, and plaintiff appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

John C. Bane and George L. Schuyler, for appellant. R. W. Irwin, D. M. McCloskey, and Jas. A. Wiley, for appellee.

Section 1 of the act of December 14, 1854 (P. L. [1855] 724; 2 Purd. Dig. [13th Ed.] 1511), provides as follows: "The official acts, protests and attestations of all notaries public, certified according to law, under their respective hands and seals of office, in respect to the dishonor of all bills and promissory notes, and of notice to the drawers, acceptors or indorsers thereof, may be received and read in evidence as proof of the facts therein stated, in all suits now pending or hereafter to be brought: Provided, that any party may be permitted to contradict, by other evidence, any such certificate." This act, as will be observed, makes the certificate of the notary prima facie evidence of the allegations set forth in it. If there is nothing in contradiction, it is conclusive of what it contains. This certificate is in the usual form, and the notary certifies that she demanded payment of the note which was refused, "whereof I duly notified the maker and indorsers." If this certificate was the only evidence on the question of notice, it would be conclusive as to notice having been given to Moffitt, the indorser. The defendant, however, attacks the correctness of the certificate as the act specifically provides he may do, and among other evidence introduced for that purpose was that of the notary, alluded to above, in which she said that she had no present recollection that she sent or gave the notice. She does It is not denied that on maturity of the not deny the genuineness of the certificate of note, November 1, 1906, it was presented by protest and that she gave notice of dishonor a notary public for payment at the First Na- as set forth in the certificate, but simply testional Bank of Charleroi, the place of pay- tifies that she had no recollection on the ment named in the note, and that payment trial of the cause that she sent or gave the was refused. The defendant, however, denies notice. We think it was error for the learnthat he received notice of the dishonor of the ed court to submit her failure of recollection note. To establish the fact the plaintiff of- in sending or giving the notice as "a fact, a fered in evidence the certificate of the notary, circumstance," to be considered by the jury which is in the usual form and under the in determining whether the defendant rehand and seal of the notary. It certifies ceived notice of dishonor. The notary or that the notary presented the note "at the any other witness might have been called to First National Bank of Charleroi, and de- contradict the allegation in the certificate manded payment thereof, which was refused, that she had notified the maker and indorsers the answer being 'No attention,' whereof I and it would have gone to the jury as any duly notified the maker and indorsers." The other evidence to sustain the defendant in defendant testified that he never received his denial that he received notice of dishonany notice of dishonor. He also called the or; but the notary's evidence as quoted above notary who protested the note for nonpay- and alluded to in the charge had no tendency ment. She testified that the protest was to contradict the certificate. She simply stat

MESTREZAT, J. This is an action of assumpsit by the holder against the indorser of a promissory note. William C. Fishburn made a promissory note, dated November 1, 1905, for $2,000, payable one year after date | at the First National Bank of Charleroi, Pa., to the order of John H. Moffitt, the defendant. The note was indorsed and delivered to Zollner, the plaintiff. It was not paid at maturity, and on November 1, 1906, it was presented at the First National Bank of Charleroi for payment, which was refused. This action was then brought by Zollner against Moffitt, the indorser. At the trial the defense was rested on two grounds: (1) The defendant had no notice of dishonor: and (2) he was an indorser for the accommodation of Zollner, the plaintiff.

ed that she had no present recollection that either way would have complied with the she sent or gave notice as set forth in the statute, and the law presumes that the notacertificate, but at the same time admitted ry did her duty; and especially so in this that the certificate was correct, and there- case, where she certifies that she "duly notiThere was, however, fore that she had notified the maker and in-fied" the indorsers. dorsers. If she had denied that she had is- no presumption as to which of the two ways sued the certificate of protest, or that if she provided in the statute the notice of dishad given notice she believed she would have honor was given, and hence the court could recalled the fact, there would have been not so declare as matter of law. The intersomething to go to the jury in support of the pretation of the facts in the certificate of prodefendant's contention that he did not re- test was for the jury, and it was for them to ceive notice of dishonor. The simple fact determine the manner in which the notice was that her mind was a blank at that time as given. McGee v. Northumberland Bank, 5 to what she admitted was the truth, as shown Watts, 32. In that case it is said (page 33 of by her certificate, that notice of dishonor 5 Watts): "Had the notary testified in perhad been given, should not have gone to the son, as he might, that he had given notice jury with instructions that they should con- at Northumberland, no one would pretend it sider it in support of the defense that the in- to be the province of the court to say whethdorsers had not received notice. In the lan-er he meant that he had given it through guage of Mr. Justice Strong in Sherer v. the post office, or that the party was presto receive it. His meaning would be Easton Bank, 33 Pa. 134, 140: "That the ent notary did not recollect it amounts to noth- for the jury, and so it must be in respect ing. The certificate was positive proof; the to what he testifies under the sanction of want of recollection, no proof at all." The any official, instead of a judicial oath." Prior to the enactment of the negotiable infirst assignment is sustained. struments law, if notice of protest was sent by a letter, prepaid, properly addressed, and deposited in the post office, there was a presumption that it reached its destination by due course of mail, but the presumption could be rebutted by evidence showing that it was not received, and when such evidence was produced it was a question of fact for the jury. Jensen v. McCorkell, 154 Pa. 323, 26 Atl. 366, 35 Am. St. Rep. 843. Section 105 of the negotiable instruments law has changed the former law on this subject By providing that: "Where notice of dishonor is duly addressed and deposited in the post office, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails." Under this section due notice of dishonor is deemed to have been given when it is shown that the notice is properly addressed and deposited in the post office, whether it has been received or not. In other words, the purpose and effect of this section of the act was simply to protect the sender of the notice against miscarriage of the mails. The section does not in any manner affect the case in hand. The question here is not whether there is a presumption that notice was duly mailed, but whether the presumption arising from the certificate that notice of dishonor was duly given the indorser has been met and overcome by the defendant. The second and third assignments of error are sustained.

Section 96 of the act of May 16, 1901 (P. L. 207; 3 Purd. Dig. [13th Ed.] 3291), known as the "Negotiable Instruments Law," declares as follows: "The notice (of dishonor) may be in writing or merely oral, and may be given in any terms which sufficiently identify the instrument and indicate that it has been dishonored by nonacceptance or nonpayment. It may in all cases be given by delivering it personally or through the mails." The certificate of protest of the notary in the present case says: "I duly notified the maker and indorsers." There is nothing in the cer

tificate to indicate how the notice was given, whether it was verbal or in writing. The act permits the notice to be given in either way and declares it to be lawful. Neither is there anything in the certificate of protest to indicate whether the notice of dishonor, certified to have been given in this case, was delivered personally or through the mails. Here again the law permits the alternative and declares that either is sufficient.

The

notary therefore could have "duly notified the maker and indorsers," as she certifies she did, by a notice either oral or in writing through the mails. This is apparent, and not open to doubt. It therefore logically follows that to meet the allegation of notice as contained in the certificate of protest, which was prima facie evidence, the defendant was compelled to show that he had not received notice which had been served personally or through the mails. The certificate of protest, being prima facie evidence, raised a presumption that notice of dishonor was given either personally or through the mails.

The protest of the notary is considered as establishing the fact of notice when recited in it, unless it be disproved by other evidence. Sergeant, J., in Jenks v. Doylestown

He

The learned trial judge was in error in affirming the defendant's third point. and the learned counsel for the defendant were misled by the syllabus in Marshall v. Sonneman, 216 Pa. 65, 64 Atl. 874. The first paragraph of the syllabus is misleading and does not state correctly what was decided in the case. It is quoted from a very old case of this court which is cited in the opin