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SPAEDER ET UX. v. TABAK (01/17/52)

January 17, 1952

SPAEDER ET UX.
v.
TABAK



COUNSEL

Paul A. Stephany, Erie, for appellant.

Marsh, Spaeder, Baur & Spaeder and Will J. Schaaf, all of Erie, for appellees.

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

Author: Dithrich

[ 170 Pa. Super. Page 394]

DITHRICH, Judge.

This is an appeal from a decree enjoining defendant from maintaining any barrier across a driveway extending over property owned by defendant and from interfering in any manner with its use by plaintiffs.

In 1915 Mary Mueller was the owner of two adjacent lots in the City of Erie which together formed a rectangular tract of land at the southwest corner of 24th and German Streets, extending 63 3/4 feet along the westerly side of German Street and 94 feet along the southerly side of 24th Street. In that year she caused a garage to be erected on the southwesterly portion of the land directly behind a dwelling house located thereon. The dwelling house faced German Street but the garage faced 24th Street, being connected therewith by a concrete driveway, also constructed in 1915.

On November 15, 1923, the owner conveyed that part of the property upon which the garage and dwelling house were erected to Mary F. Hartnick. The remainder of the land, traversed by the driveway, was retained by her until May 27, 1925, when she conveyed it to Herbert E. Riehl. The lot conveyed, now known as 2406 German Street, having a frontage of 37 feet on German Street and being 94 feet in depth, was acquired by plaintiffs August 28, 1942. The lot retained, now known as 2402 German Street, having a frontage of 26 3/4 feet on German Street and being 94 feet in depth measured along 24th Street, was acquired by defendant April 4, 1944.

It appears that sometime between 1924 and 1930 or 1931 Edward J. Schnee, one of plaintiffs' predecessors

[ 170 Pa. Super. Page 395]

    in title, laid a cement strip next to an existing sidewalk along the northerly side of the dwelling house. Together the strip and the sidewalk constituted a driveway opening onto German Street. This driveway is located entirely on the lot now owned by plaintiffs, but the chancellor stated, on the basis of substantial evidence, that access to the garage by its use is possible only after a 'laborious process of backing and turning,' and 'In the event defendant were to construct any building or wall of a permanent nature upon the party line, it is extremely doubtful that the turn into the garage could be negotiated.'

There is also substantial evidence to support the finding that 'All holders in the chain of title between Mary Mueller and the present plaintiffs consistently and openly used the driveway * * * [constructed by the common owner] as the primary means of access to the garage established upon their property.' Following defendant's interference with their use of the driveway, plaintiffs filed a bill in equity for an injunction. The court, in granting the relief sought, held that plaintiffs had the right to the free and uninterrupted use of the driveway as an implied easement appurtenant to their lot.

In the recent case of DePietro v. Triano, 167 Pa. Super. 29, at pages 31, 32, 33, 74 A.2d 710, at page 711, in an opinion by Rhodes, P. J., the well-settled principles of law relating to implied easements were stated as follows: 'To establish an easement by implication on the severance of the unity of ownership in an estate there must be (1) a separation of the title, (2) such continuous and obvious user before the separation as to show an intention to make the alleged easement permanent, (3) the easement must be necessary to the beneficial enjoyment of the ...


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