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July 17, 1952



Alexander J. Bielski, McKeesport, for appellant.

William Moldovan, City Sol., McKeesport, for appellee.

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

Author: Reno

[ 171 Pa. Super. Page 380]

RENO, Justice.

This action to quiet title was instituted under Pa.R.C.P. No. 1061, 12 P.S.Appendix, by appellant, Versailles Township Authority of Allegheny County, Pennsylvania, against the City of McKeesport, a city of the third class. The City's preliminary objections were overruled; it filed an answer; the case was tried by a judge without a jury; and a compulsory non-suit was entered which the court en banc refused to remove.

The appeal was argued twice; the second time pursuant to an order of this Court entered sua sponte. At the second hearing the City raised no question concerning the jurisdiction of this Court, although the amount in controversy, the value of the property claimed, far exceeds the limits of our jurisdiction; and, accordingly, we shall decide the controversy. Act of May 5, 1899, P.L. 248, § 11, 17 P.S. § 203. At the same time, the Authority formally waived any objection it might have had to the entry by the Court of Common Pleas of Allegheny County of a compulsory non-suit in an action tried by a judge without a jury. See Pennsylvania R. R. Co. v. J. Jacob Shannon & Co., 363 Pa. 438, 70 A.2d 321; Malone v. Marano, 326 Pa. 316, 192 A. 254; Clark v. Davidson, 83 Pa. Super. 79.

Versailles Township, which became the Borough of White Oak in 1947, adjoins McKeesport and, beginning in 1907 and continuing until the present time, the City

[ 171 Pa. Super. Page 381]

    has supplied water to the inhabitants of the Township and Borough. Some of the mains and pipes through which the water was supplied were installed by the City; others by the Township, which were paid for by assessments levied against the property owners; and others by private individuals or associations owning and interested in the development of building lot projects. All these mains were connected with each other and with the facilities of the City, and have been continuously maintained, repaired, and operated by the City.

The Authority was incorporated under the Municipality Authorities Act of May 2, 1945, P.L.382, as amended, 53 P.S. § 2900z-1 et seq., and is authorized in broad terms to acquire and operate a water system and to supply water and fire protection to the inhabitants of the Township. Id. § 4, 53 P.S. § 2900z-5. After the Authority was incorporated, the Borough, pursuant to the Act, § 9, 53 P.S. § 2900z-10, by deed dated July 5, 1949, conveyed to the Authority: 'All the entire water works distribution system located in the Township of Versailles, now White Oak Borough, Allegheny County, Pennsylvania, including all water mains, pipes, conduits, gates, hydrants, shut offs and valves constituting the water distribution in the Township of Versailles as aforesaid, which has been erected over, under and upon any and all the streets, lanes, alleys, avenues, drives, roads and highways of the said Township, together with the necessary easements and rights of way in the operation of the aforesaid system, or any extension of the same, including the right of transmission of water through said water works system.' (Emphasis added.) Under this deed the Authority claims title to the water system, the pipes and mains, installed by the City, the Township, and the private parties. The deed is the Authority's only muniment of title and the sole foundation for this action.

[ 171 Pa. Super. Page 382]

It will be noted, and this point must be emphasized, the deed purports to convey an integrated water system. No distinction is drawn between the mains and facilities installed by the Township and those installed by the City and others. The Authority's complaint does not distinguish between the separate installations made by the several parties; it claims the entire system. Furthermore, at the second argument, the Authority contended that it was entitled to a judgment covering all or none of the mains and facilities. The Borough might have limited its conveyance to the mains laid down by the Township, but obviously a conveyance to or a judgment for the Authority for a part of the system would be of little or no value to it. Unless it can quiet or acquire title to the whole system the purpose of the instant action will be frustrated. It will not be content with power to operate only that part of the system which consists of the mains laid by the Township. Accordingly, adjudication will be made within the lines and setting of the deed, the complaint and the Authority's arguments, and will apply to the system as a whole.

I. The Action. Pa.R.C.P. No. 1061, provides in part: '(b) The action [to quiet title] may be brought * * * (2) where an action of ejectment will not lie, to determine any right, lien, title or interest in the land or determine the validity or discharge of any document, obligation or deed affecting any right, lien, title or interest in land; * * *.' (Emphasis added.) In its complaint the Authority averred possession of the mains but its brief conceded that the City has possession of and is exercising exclusive dominion over the entire system. Where the defendant is in possession and ejectment will lie, the action to quiet ...

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