Opinion
December 9, 1959.
Earl Auerback, for the defendants.
Samuel J. Freedman, for the plaintiff.
Final decree is to be modified by striking out paragraphs 1, 2, and 3 and by substituting new paragraphs which are to provide that the plaintiff's easement extends only over the strip three feet three inches in width beyond the plaintiff's property. As so modified the final decree is affirmed. This is a bill in equity to enjoin the defendants from interfering with a strip of land three feet three inches in width over which the plaintiff claims to have acquired an easement by prescription. This strip adjoins the property of the plaintiff and together with a strip four feet wide, the ownership of which is admittedly in the plaintiff by deed, forms a driveway seven feet three inches in width and has been used by the plaintiff as such since 1926. From a reading of the subsidiary facts found by the master it is apparent that he found that the plaintiff had acquired a prescriptive right to use the strip three feet three inches wide adjoining the plaintiff's land, the record title of which was in the defendants Grabowiecki. A decree was entered granting the relief prayed for and the defendants appealed. The defendants do not challenge the decree on the merits but seek only to have it clarified. We are of opinion that the decree is in need of clarification. As paragraphs numbered 1, 2, and 3 of the decree now read, there is a possibility that it might be construed as giving the plaintiff an easement over the land of the defendants Grabowiecki seven feet three inches in width. This is not in accordance with the subsidiary facts found by the master and the plaintiff does not assert any such right. The final decree therefore should be modified by striking out paragraphs 1, 2, and 3 and by substituting new paragraphs which are to provide that the plaintiff's easement extends only over the strip three feet three inches in width beyond the plaintiff's property. As so modified the final decree is affirmed.