Opinion
November 22, 1932.
January 25, 1933.
Equity — Real estate — Alley — Easement — Adverse use for more than twenty-one years — Evidence — Sufficiency.
In a bill in equity to enjoin the defendant from interfering with the plaintiffs' use of an alley, it appeared that the plaintiffs owned a house and lot near the center of a block in a municipality and that the deed described the width and depth of the lot in feet and recited that it was bounded on the rear by land owned by the defendant's predecessor in title. The plaintiffs testified that an alley twenty feet in width was located immediately in the rear of their property and the other lots in the block and that it had been used by people desiring ingress and egress to the rear of the properties located in the block. Their evidence further established that the alley had been in continuous, adverse and notorious use for more than 21 years. The defendant denied that the alley existed or that it had been used.
In such case there was sufficient evidence to support the finding of the chancellor that the alley was located immediately in the rear of the plaintiffs' property and that it had been in actual, continuous and notorious use for 21 years and upwards. The decree of the court below permanently restraining the defendant from interfering with the plaintiffs' use of an alley will be sustained.
Property owners abutting on an undedicated alley acquire an easement in it where it has been in adverse use for more than twenty-one years.
Appeal No. 313, October T., 1932, by defendant from decree of C.P., Delaware County, December T., 1927, No. 2432, in the case of Philip Tirjon and Helen Tirjon, his wife, v. Conrad Matern.
Before TREXLER, P.J., KELLER, GAWTHROP, CUNNINGHAM, BALDRIGE, STADTFELD and PARKER, JJ. Affirmed.
Bill in equity to enjoin the interference with the use of an alley. Before MacDADE, J.
The facts are stated in the opinion of the Superior Court.
The court by decree permanently restrained the defendant from interfering with the plaintiffs' use of the alley. Defendant appealed. Error assigned, among others, was the decree of the court.
William C. Alexander, for appellant.
John E. McDonough and with him R. Paul Lessy and M.S. Reps, for appellee.
Argued November 22, 1932.
This appeal is from an order of the court permanently restraining the defendant from interfering with the plaintiffs' use of an alley in the rear of their premises, known as 2510 West Fourth Street, in the City of Chester.
From the chancellor's findings, which were sustained by the court below, it appears that, in 1870, John M. Broomall owned and laid out a tract of land in lots and streets. This plot included land bounded on the south by Fourth Street, on the north by the alley in question, on the east by Ward Street, and on the west by Wilson Street; and embraces plaintiffs' lot. By a series of conveyances, J. Ellis Moore acquired title to that block, and, in 1902, built thereon ten two-story brick dwelling houses. Each of the lots had a rear fence, with a gate, extending along and practically parallel with, and 2 or 3 feet distant from, a highway, known as the Old Post Road. William R. Calligan acquired title to No. 2510 West Fourth Street, which he and his wife, in February, 1915, conveyed to the plaintiffs herein. This lot has a frontage of 18 feet on Fourth Street and extends northwardly 118 feet 6 inches, and, as described in the deed, is bounded on the north by land of George Wunderlich. The Old Post Road was laid out under a colonial grant, and, in 1872, that section of it in Chester, extending from Third and Fourth Streets to a point on Highland Street, about 60 feet north of Fourth Street, was vacated. It bisected streets and town lots, and eventually became useless to the general public, as the new streets laid out and the old ones straightened adequately accommodated travellers. Fourth Street, however, was not accepted as a public highway until 1891, and the public continued the use of the Old Post Road until that time. Thereafter, its use was largely confined to people desiring ingress and egress to the rear of the properties in the block where plaintiffs' lot is located. The chancellor's location of the Old Post Road is somewhat uncertain, but he very definitely located an alley immediately in the rear of plaintiffs' lot, 20 feet in width, which had been in "actual, continuous, notorious, distinct, hostile and adverse possession for 21 years and upwards," without molestation until appellant's interference.
The appellant contends that this alley is part of the land he acquired, formerly owned by George Wunderlich, and that his southern boundary line is a distance of 118 feet 6 inches north of Fourth Street; that the Old Post Road, instead of being located immediately north of plaintiffs' lot, was 224.63 feet north of Fourth Street, which would be 106 feet beyond plaintiffs' northern boundary line.
Referring now to the plaintiffs' evidence relating to the location, character, and use of this alley, we find that George J. Hunter, director of the highway department of Chester, and a resident in that neighborhood, testified that he remembered when the row of houses on Fourth Street was built, which, as we have already stated, was in 1902. He located the rear fences as being 5 feet from the Old Post Road, which was "paved with stone and some were large stones and some were small ones — macadamized" for 15 or 20 feet in width. Jacob Schwartz testified that he knew of these houses for 25 years, and that they had fences in the rear, with gates; that he delivered beer 15 to 20 years before the hearing in this suit to these different houses as often as three or four times a week, by driving up the alley; that he saw the baker, milkman and others using it. He fixed the alley as being within 2 or 3 feet from the fences. Edward Farmer also testified that he lived in that neighborhood and had known of this row of houses and the alley for 30 years. He used the alley in driving a wagon to deliver bottled goods to the houses in that block about 1900, and saw others making similar use of it. He located the fences as being within about a foot of the alley. There were a number of other witnesses who described the fences, gates, condition and width of the alley, and its use by people who had occasion to deliver merchandise, etc. True, this testimony was contradicted, but it cannot be said that there was insufficient evidence to support the findings of the court of the alley's location, or a continuous, adverse and notorious use of it.
The appellant denies that Broomall was a common source of title, or that the record discloses that he ever owned the land in dispute, as alleged by the plaintiffs and as found by the chancellor. But the chancellor, notwithstanding he so found, when he came to a discussion of the law, refused to accept the theory of common ownership, as he expressly stated, "This was not an easement created by a common owner." His ultimate finding is clearly based on an unbroken, adverse use for a sufficient time to acquire an easement: Pierce v. Cloud, 42 Pa. 102.
The appellant argues that, as the deed to the appellees does not call for an alley or the Old Post Road as its boundary, but for land of George Wunderlich, the alleged alley did not, in fact, exist. This argument is plausible, but it evidently failed to convince the chancellor, and the call in that deed is not conclusive. It is not necessary that the alley should have been recognized or mentioned in the deed; but, of course, it is essential that there was a palpable and permanent use thereof: Casey v. Canning, 43 Pa. Super. 31. See also Kieffer v. Imhoff, 26 Pa. 438; Overdeer v. Updegraff, 69 Pa. 110; Grace Church v. Dobbins, 153 Pa. 294, 25 A. 1120; Held v. McBride, 3 Pa. Super. 155.
We have carefully examined this entire record and have reached the conclusion that there is sufficient competent evidence to support the finding of the lower court, and find no reversible error.
Decree of the court below is affirmed at the cost of appellant.