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OVERLY ET UX. v. HIXSON ET UX. (07/19/51)

July 19, 1951

OVERLY ET UX.
v.
HIXSON ET UX.



COUNSEL

John W. Pollins, Pollins & Pollins, Greensburg, for appellants.

Myron W. Lamproplos, Cassidy & Lamproplos, Greensburg, for appellees.

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

Author: Dithrich

[ 169 Pa. Super. Page 188]

DITHRICH, Judge.

Defendants appeal from a decree of the Court of Common Pleas of Westmoreland County which permanently enjoined them 'from obstructing or interfering with the use and enjoyment by the plaintiffs * * * of the right-of-way * * * running from real estate and farm, owned by the plaintiffs, over and across the real estate of the defendants.'

The following facts are not disputed. In 1881 Christopher Fox acquired record title to a farm in East Huntingdon Township containing some 200 acres. By deed dated February 19, 1906, he conveyed out of that farm a tract of 5.9417 acres abutting on its western boundary which ran along the State Highway from Greensburg to Scottdale. The grantees, Sarah S. Fox*fn1 and Nora A. Fox, took possession of the premises but failed to have their deed recorded. It remained unrecorded until December 30, 1940. Hence despite this conveyance, Christopher Fox, who died intestate April 1,

[ 169 Pa. Super. Page 1891911]

, was record owner of the full 200 acres at the time of his death.

Minnie Fox Matthews and Nora A. Fox, his sole heirs at law and record owners, therefore, of the 200 acres, conveyed 114.852 of those acres to Freeman F. Johnson by recorded deed dated November 19, 1925. The granted acreage lay east of the Township road which crossed the farm, while most of the remainder lay to the west of that road, between it and the State Highway. Roughly speaking, the Township road and the State Highway run north and south. The deed to Johnson included a grant of the following right-of-way: 'together with the right-of-way over other lands owned by the grantors herein from the land above described to the State Highway leading from Greensburg to Scottdale 15 feet in width, on and over the private road as now laid out and used.' (Emphasis added.)

On December 9, 1935, 60 acres lying west of the Township road, partially bounded by it and the State Highway, were conveyed to George J. Overly by Nora A. Fox, she having obtained absolute title thereto prior to that date. Overly had previously acquired the 114.852 acre tract from Johnson, together with the right-of-way as described in the 1925 deed. His interest in these tracts passed to plaintiffs June 8, 1944.

By various inheritances from Nora A. Fox, Minnie Fox Matthews and Sarah S. Fox, title to a 4.967 acre tract vested in S. F. Matthews and Burton S. Fox. This tract, bounded on the east, north and south by the 60 acre tract, subsequently became vested in defendants by deed dated April 15, 1946.

Plaintiffs alleged that the right-of-way set out in the deed of 1925, after passing over a section of the 60 acres contiguous to the eastern side of the 4.967 acre tract, enters and crosses that tract in a westerly direction, i. e., toward the State Highway. That ...


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