Appeal, No. 213, March T., 1952, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1949, No. 2798, in case of Cox's Incorporated v. W. Homer Snodgrass et ux., Milnor P. Clark, Margaret Electa Clark, Effie Minerva Clark and William L. Buck. Judgment reversed.
Harold E. Harper, with him L. G. Curry and Alter, Wright & Barron, for appellants.
T. C. Jones, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from a judgment for appellee in an action to quiet title. The land in question, known as Birch Alley, is one block long and is located in the business district of McKeesport. The complaint was filed by the appellee who owns land abutting on Birch Alley. Appellants' land abuts on Malt Alley which is adjacent to Birch Alley. Because Malt Alley is closed on one end, it is necessary to traverse Birch Alley to get to Malt Alley.
Appellee acquired title to its lots on December 1, 1941, by a deed which provided, inter alia, "This conveyance being made subject to... any outstanding rights in or to [Birch Alley]...". On April 18, 1946, the City of McKeesport enacted on ordinance which provided that Birch Alley be "vacated" in accordance with the provisions of the Act of June 23, 1931, P.L. 932, Art. XXIX. Sec. 2915, as amended, 53 PS § 12198-2915. Section 2 of the ordinance authorized the city solicitor to petition the court of common pleas for the appointment of viewers to assess damages and benefits resulting from the vacation of Birch Alley.
Viewers were appointed and on July 3, 1947 they filed a report recommending the vacation of the alley. No exceptions or appeals were filed and this report was subsequently confirmed absolutely. The schedule attached to the viewers' report listed eight properties (but made no reference to the lots owned by appellants), and awarded no benefits and assessed no damages.
On December 6, 1948, appellee filed the complaint in the instant case, in which they alleged (1) that Birch Alley was projected by the Borough (now City) of McKeesport and appeared on the municipal plan prior to the time it appeared as part of a plan of lots from which lots were sold to appellants' predecessor in title, and that the original grantees took title with knowledge that the alley was part of the plan of the Borough of McKeesport; (2) that the necessary effect of the ordinance of April 18, 1946 was to extinguish all public and private rights to use the alley.
Appellants filed an answer in which they denied the material allegations of the complaint and alleged that the original owner of the land had laid out a plan of lots, including Birch Alley, prior to the time that alley appeared on any municipal plan; that the deed to appellee in 1941 was expressly made subject to all outstanding rights, and that the proceeding by the board of viewers as authorized by the ordinance did not have the effect of extinguishing appellants' easement.
When the case came up for trial, appellee presented its case. Then a conference of the parties and the court was held in chambers, where appellants offered to prove that Birch Alley was first laid out by the owners on a plan of lots which was recorded in 1880; that the lots were thereafter sold to appellants' predecessors in title according to the plan of lots; that subsequently Birch Alley was accepted by the municipality and adopted as a public way. Counsel for appellee then stipulated that if the offer were permitted, testimony in support of the offer would be presented. The court then ruled that if such evidence were established, it would not affect the ruling which the court had already indicated, that is, that ...