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HOLDEN ET UX. v. MOSER ET UX. (03/16/54)

March 16, 1954

HOLDEN ET UX.
v.
MOSER ET UX.



COUNSEL

Samuel L. Sagendorph, Norristown, for appellants.

Raymond Pearlstine, Wisler, Pearlstine, Talone & Gerber, Norristown, for appellees.

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

Author: Rhodes

[ 175 Pa. Super. Page 207]

RHODES, President Judge.

Plaintiffs have appealed from the final decree of the Court of Common Pleas of Montgomery County dismissing their complaint in equity against defendants. Plaintiffs sought an injunction perpetually enjoining and restraining defendants from denying plaintiffs the use of easements for the drainage of surface water from plaintiffs's property.

The chancellor found that plaintiffs did not possess easements as alleged, and dismissed the complaint. The decree of dismissal was made final. Plaintiffs have appealed to this Court.

The basis for appellants' action is the language of a deed in the chain of title to a part of defendants' land.

In 1905, John Sweatt had acquired a relatively large tract of land on the east side of Ridge Pike in Lower Providence Township, Montgomery County. Sweatt was the common owner of the lands of plaintiffs and

[ 175 Pa. Super. Page 208]

    defendants. He had his dwelling house and outbuildings on the southern portion of his property. In 1926, he began the construction of a road which intersected Ridge Pike and ran in a westerly direction; Ridge Pike runs north and south. The new road was referred to as Midelon Avenue originally, but subsequently it was designated Midland Avenue. This road was graded and surfaced with an 8-inch layer of stone; and it divided Sweatt's land into two parts, the northern and southern portions. In October of 1928 Sweatt conveyed to one Anthony Tommarelli a lot located at the northwest corner of his property and north of Midland Avenue. The southern boundary of the lot was parallel to Midland Avenue and located approximately midway between that road and the northern boundary of the entire tract. The deed contained the following clauses:

'Under and Subject as to strip of land 5C wide extending along the N.W. side of land above described from the Ridge Road Northeastwardly to the middle line of the alley, 14C wide, referred to in the above description to a right of way to be used by the property above described and by the owners and occupiers of other lots, streets and alleys on the other land of the said John Sweatt, as and for an alley for the drainage of surface waters and for cellar drainage.

'The said strip of land 5C wide shall be maintained by the owners of the land above described and shall be kept in good order and ...


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