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PACI ET AL. v. SHIPLEY ET AL. (03/14/50)

March 14, 1950

PACI ET AL.
v.
SHIPLEY ET AL.



COUNSEL

Challen W. Waychoff, Waychoff, Maxwell & Waychoff, Waynesburg, for appellants.

John I. Hook, Jr., Scott & Hook, Waynesburg, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Fine, JJ.

Author: Fine

[ 166 Pa. Super. Page 375]

FINE, Judge.

This is an appeal by certain owners of land contiguous to a portion of an unnamed alley from the decree of the court below restraining them from interfering with the lawful use of said alley by appellees, other owners of land over which the remaining portion of the alley in question exists, and requiring them, appellants, to remove obstructions which they had placed across said alley.

Buckeye Coal Company, prior to 1917, purchased several large tracts of undeveloped land situate in Cumberland Township, Greene County, and in 1923, constructed houses thereon which were leased to employes of the company. The town thus created was named Nemacolin. The alley in question, approximately 250 feet in length, was laid out by the company in 1923 and

[ 166 Pa. Super. Page 376]

    has been used continuously since that time. The route of the alley was from Dewey Lane to Grant Lane, crossing lots 351, 352, 353, 354, 346, 347. It has been surfaced with 'reddog' for many years.

The company entered into an agreement in 1946 with Richard L. Baily whereby it agreed to sell the said town of Nemacolin to him, and he in turn was to reconvey the lots and houses erected thereon to the employe-tenants then occupying the respective houses. The deed from the company to Baily was dated November 29, 1949, and contained the following clause: 'This conveyance is made subject to any highway, telephone line or other easement now in effect on said ten tracts or parcels of land.' Thereafter, Baily, by deeds dated December 2, 1946, and recorded the same day, conveyed lot No. 352 to Emil Paci and Helen T., his wife, appellees; lot No. 353 to Harry L. Davis and Gertrude H., his wife, appellees; lot No. 354 to Walter Pavlak and Mary I., his wife, appellees; lot No. 347 to Forrest W. Shipley and Daisy W., his wife, appellants; and lot No. 346 to Joseph W. Petratus, appellant. Anthony Petratus and Laura, his wife, appellants, are the parents of Joseph W. Petratus and reside with him. Each of the aforesaid deeds contained the following clause: 'Subject to and under the exceptions, reservations and conditions contained in the deed from Buckeye Coal Company to the said Richard L. Baily, also under and subject to all existing roads, streets, alleys, rights of way, pipe lines, electric lines and telephone poles, water and dewage lines now on said premises.'

Appellants, in May, 1947, effectively obstructed the use of the alley, precipitating this litigation, at two points: (1) where the alley crossed the boundary line between lot No. 346 and lot No. 354 by the erection of a wooden fence across the alley, (2) and by the erection of iron posts across the alley where the alley intersected Grant Lane. They contend that the alley was not

[ 166 Pa. Super. Page 377]

    shown upon a plan of lots in question duly recorded by Baily: that the alley as laid out was at a different location from that claimed by appellees. They further argue that, (1) the alley is not shown to have been dedicated to public use and is, therefore, not a public way; (2) Baily, being owner of the entire tract, had a right to relocate the ways existing upon the land at the time of his acquisition, and exercised such right when he filed of record a plot of the entire town; and (3) said ...


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