Appeal, No. 8, Jan. T., 1954, from decree of Court of Common Pleas of Montgomery County, June T., 1951, No. 9, in case of Harry Puleo v. Anthony Bearoff et al., trading as Bearoff Bros. Decree affirmed.
Alphonso Santangelo, for appellant.
Desmond J. McTighe, with him William B. Koch and Duffy, McTighe & McElhone, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Plaintiff appeals from the dismissal of his bill in equity which sought to enjoin defendants from using
a right of way as to which he claimed an exclusive easement.
Plaintiff is engaged in the scrap iron and metal business and owns and occupies an industrial property along the banks of the Schuylkill River between Bridgeport and West Conshohocken in Montgomery County. The property lies between the main line of the Reading Railroad and the River, and the sole access to it from the public highway is by a private grade crossing over the railroad. Defendants are engaged in the manufacture and sale of cinders, and they likewise own and occupy a property between the River and the main line of the Reading Railroad. Also in the case of this property a private grade crossing over the railroad would be needed to gain access to the public highway.
Plaintiff purchased the first tract constituting part of his present property in 1924; no mention was made in the deed of any right of way over the railroad but plaintiff began, and has ever since continued, to use such a crossing.
In 1946 the Reading Company, by written agreement, gave defendants permission to use "the existing private roadway crossing" over its tracks,*fn* on condition, however, that it should be removed at any time upon notice to that effect given by the Reading Company, and defendants agreed to indemnify the Company from all claims and actions for injury or damage to them or their invitees using such crossing.
In 1948 plaintiff acquired a second tract of land from the Reading Company lying between his other land and that of defendants. The deed stated, as further consideration for the conveyance, that ...