John T. Mulhall, Pittston, for appellants.
Ettore S. Agolino, Pittston, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther and Wright, JJ.
[ 173 Pa. Super. Page 160]
Plaintiffs, husband and wife, sued in equity to compel defendants, husband and wife, owners of adjoining property, to remove sand, stones and other obstructions which defendants had placed in a ten foot alleyway, created by deed of the original owner of both of their lots, and to cease and desist from interfering with plaintiffs' free and unobstructed use of the same. The chancellor dismissed the bill on the ground that the easement had been extinguished by mutual abandonment. Plaintiffs' exceptions were dismissed by the court en banc, and this appeal followed.
Plaintiffs and defendants are residents of the Borough of Dupont and owners of adjoining lots on the northerly side of Main Street in said Borough, the lot of defendants lying on the westerly side of plaintiffs' lot. The common source of title of both lots was originally in Hiram Castner, who, in 1883, had acquired a tract of land of which these adjoining lots are a part.
In 1906 Castner conveyed to his son-in-law, one John Fabian, 67 feet of his tract, and in his deed to him, provision was made for a ten foot alleyway running from Main Street back to a creek at the rear.*fn1 Fabian was to contribute five feet of the land granted
[ 173 Pa. Super. Page 161]
to him towards said alleyway, and Castner was to contribute a like amount of his adjoining land. At the time this conveyance was made, there was a wooden fence on the ground within the lines of the proposed alleyway. Fabian conveyed this lot, with the fence on the ground, expressly subject to the easement of the alleyway, to Paul Tetlak and his wife, Frances, by deed dated March 26, 1924. Paul Tetlak died and his surviving spouse, Frances, married John Tetlak, named with her as the defendant in this action. Fabian and his grantees occupied all of the land up to the fence.
Plaintiffs received title to their lot by deed dated February 18, 1919 from Elizabeth Keating and others who were the grantees of Castner. Plaintiffs entered into possession and have occupied the premises continuously since 1919.
From the time of the conveyance to Fabian in 1906 until 1947 the fence remained in existence within the lines of the proposed alleyway; the alleyway was never opened for use. In 1947 plaintiffs built an extension or addition to the building on their lot for business purposes, and, in order to reach the rear of their premises, tore down part of the fence. Defendants asserted their right to possession of all the land on their side of the fence and resisted plaintiffs' right to make use of the alleged alleyway by placing sand, stones and other obstructions thereon.
The sole question for determination is whether there is sufficient evidence to support the findings of the court below that the easement, created by grant, ...