delivered the opinion of the court, January 7th 1884.
In January 1784, John Penn, Jr., and John Penn, late proprietaries of Pennsylvania, made an agreement with Isaac Craig and Stephen Bayard fol the sale, inter alia, of a piece of land in the “manor of Pittsburgh, lying and being in a point formed by the junction of the two rivers Monongahela and Allegheny ; bonnded on two sides by the rivers aforesaid, on a third side by the top or ditch of Fort Pitt continued from the Monongahela to the salient angle of the northeast bastion, and thence, on the other side of a ditch, out to the Allegheny, containing three acres more or less.”
The subject of this contention is the title to a portion of the above described river front, extended and enlarged by the accretions thereto of nearly a hundred years. Starting with the admission of title in the Penns, the plaintiff gave in evidence the contract of sale above referred to, the deed of December 31st 1784, from the Penns to Craig and Bayard, together with Col. Wood’s plan of Pittsburgh, several deeds of conveyance and other evidence, tending to show that the title acquired by Craig and Bayard was transferred and finally vested in the plaintiff.
Tiie contract of sale was clearly executory. It expressly provided for a formal deed of conveyance within a year, and also that the consideration thereof should be determined by a bona fide sale of a like quantity of adjoining land. The deed called for by the agreement was executed and delivered within the year, but the land thereby conveyed was not the same, in all respects, as that described in the agreement. According to the description contained in the deed itself, it conveyed thirty-two lots or pieces of ground situated at a point formed by the two rivers Monongahela and Allegheny in the town of Pittsburgh, marked in Col. Wood’s plan of said town Nos. 1 to 17 inclusive, Nos. 132 to 145 inclusive, and No. 260 ; “ said plan being recorded or intending to be recorded in the office for recording deeds in Westmoreland county: The said lots Nos. 1 to 17 inclusive are bounded northwardly by said Allegheny river, eastwardly by Marbury street, southwardly by Penn street andsouthwestwardly by said Monongahela river; the said lots Nos. 132 to 144 inclusive, are bounded southwestwardly *480byrkaid Monongahela river, northwardly by Penn street, eastwardly by Marbury street and southwardly by Liberty street.” The reason of this difference in description doubtless was that between the. making of the contract and the execution of the deed, nearly a year thereafter, the town of Pittsburgh was located, and the general plan thereof, embracing Fort Pitt and the entire point between the two rivera, had been prepared by Col. Wood for the Penns. Hence it was that the land intended to be conveyed is described as town lots, designated by their numbers as given on the. map or plan of the town. But whatever may have been the reason for departiqg, either in form or substance, from the original agreement, the presumption is that it was done by consent of the parties interested and for their mutual benefit. In the absence of evidence to the contrary, it must be assumed that the deed was accepted as a full and complete execution of the contract so far as it remained in force at the date of the conveyance. In other words, the executory contract, with such modifications as may have been suggested by the change of circumstances and assented to by the parties, was superseded and merged in the subsequent conveyance. The extent of Craig and Bayard’s title must therefore be determined by the deed of December 31st 1784, in connection with the plan which is therein referred to and virtually made part of the conveyance. The plan, thus incorporated with the deed for the manifest purpose of identifying and describing the property intended to be conveyed, clearly and unmistakably shows that on the side next to each river, the lots are bounded by an inside street line, leaving an open space of varying width between the lot line and the water line on each river. On the Monongahela front, the open space is Water street, and so marked on the plan. On the Allegheny front, is the public highway since known as Duquesne way, occupying the open space between the lot lines and the water line. It is conceded that the land claimed in this suit is wholly outside the lines of the lots as shown on the plan ; and unless the deed, under which plaintiff claims, conveyed more than is included within those lines, she has shown no title. The deed of December 31st 1784, properly construed, was not intended to convey, nor did it convey, any part of the point except that included within the Jot lines as designated on the plan. The precise and accurate description and location of the lots, furnished by the plan given in evidence by plaintiff herself, cannot be controlled by the general language of the deed calling for the rivers as boundaries of the respective blocks of lots. The plan, which was incorporated with the deed for the very purpose of definitely fixing the location of the lots, clearly shows that they did not extend to the water line on either river, nor include any of the land in. *481controversy. The parties to the deed never intended that they should ; nor is there any evidence that would justify a jury in finding that they did. Those who were concerned in laying out the town, that was destined soon to become a groat city, never dreamed that the lots, accurately described on the plan, embraced any portion of the narrow, open space, on each river, evidently intended as a means of public access to and along the rivers. That was left for some one else to discover long afterwards. The question appears to have been first raised in Commonwealth v. McDonald, 16 S. & R. 390, where, after an elaborate discussion.of the subject by Mr. Justice DmrcAisr, it was held that the executory contract was merged in the deed and “ nothing more was conveyed than the lots delineated in the map and designated by the numbers.” In arriving at that conclusion it is said, “ the grant is limited to the ground contained in the numbers designated in "Wood’s plan. The original agreement was extinct, a new one made. It can have no effect in the construction of the conveyance, and that was by the plan just before made. The parties could not have had in view to derange, dislocate, or break m on the plan. They profess to contract in conformity to it, and in conformity to the numbers; they adopt that plan and regulate their conveyance by it. It is impossible to reconcile the boundary of the river with the grant by the map. The moment you refer to the plan or plat of the town, which is a certain and complete description of itself, requiring nothing extraneous to designate it, the boundary by the-river is lost, the map excludes it; that circumstance is a mistake, and this, on every rule of construction, is to be disregarded as surplusage. The numbers convey all within certain limits; nothing beyond those limits is granted.”
We have no doubt the conclusion reached in that case was correct and should have been accepted as the final settlement of a question which is now resurrected after the lapse of more than half a century. It is true the parties to this contention, being different, are not bound by that decision, but the question is substantially the same, and it ought to require a very clear case to justify us in reaching a different conclusion. Instead of being departed from, however, the controlling principle of that case has been recognized and followed in subsequent cases. In the Borough of Birmingham v. Anderson, 12 Wright 253, it was held that where the proprietor of a town plan fronting on a navigable river, in his deed conveying some of the lots, refers to the plan as descriptive of the lots conveyed and their location, the plan thereby becomes an essential part of the conveyance and has the same force and effect as if copied into the deed; and, in construing such a deed wherein the lots are in terms bounded by “-the river,” the location- of the lots is so *482far controlled by the plan as to fix the lot or beach line and not the river as their real and proper boundary.
"Without pursuing the subject further, we think the Court of Common Pleas was clearly right in sustaining the judgment of non-suit.
Judgment affirmed.