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RAHN v. HESS (06/28/54)

June 28, 1954

RAHN, APPELLANT,
v.
HESS, APPELLANT



Appeals, Nos. 158 and 167, Jan. T., 1954, from the final decree of Court of Common Pleas of Montgomery County, Nov. T., 1952, in Equity, No. 20, in case of Oscar T. Rahn et al. v. H. Ober Hess et ux. Decree affirmed. Bill in equity. Before KNIGHT, P.J. Adjudication filed directing injunctive relief against obstruction of easement and refusing reformation of defendants' deeds; exceptions to adjudication dismissed and final judgment entered. Plaintiffs and defendants appealed.

COUNSEL

Russell J. Brownback, with him Roger B. Reynolds, Wallace M. Keely, George K. Brecht and Ernest E. Heim, for plaintiffs.

Victor J. Roberts, with him High, Swartz, Childs & Roberts, for defendants.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 378 Pa. Page 266]

OPINION BY MR. JUSTICE CHIDSEY

In April of 1926 the owners of a tract of land in West Norriton Township, Montgomery County, Pennsylvania, containing 122.508 acres, subdivided it into lots and streets according to a plan known as "Plan of Far View Farms" and thereafter lots were sold according to the plan. Through mesne conveyances, assignments of mortgage, foreclosure, sheriff's sale and deed, legal title to the tract, except for certain lots which had been conveyed by prior owners of the tract, became vested in the plaintiff Norristown-Penn Trust Company on January 3, 1940. Among the streets laid out on the plan were Joseph Street, Christopher Street, Williams Way and Rittenhouse Boulevard. Joseph Street runs north and south and is located at right angles to and enters upon Williams Way, an improved public highway. Christopher Street parallels Williams Way and intersects Joseph Street to the east and Rittenhouse Boulevard to the west.

The defendants, H. Ober Hess and Dolores G. Hess, his wife, and the plaintiffs, Oscar T. Rahn and Ruth M. Rahn, his wife, and J. Fenton Cloud and his wife, Evelyn T. Cloud, all acquired lots in the Far View Farms tract, either directly or through mesne conveyances from Norristown-Penn Trust Company. In each instance the description in the deeds made specific reference to lot number and block letter appearing upon the plan of Far View Farms, clearly identified the plan and where the lots abutted on Joseph Street or Christopher Street they were described as extending to the sides and not be the centers of these streets. The defendants own lots on both sides of Christopher Street where it intersects with Joseph Street. The individual plaintiffs' lots are located further to the west on Christopher Street.

[ 378 Pa. Page 267]

None of the parties disputes the fact that Joseph Street south of Christopher Street and Christopher Street from Joseph Street to Rittenhouse Boulevard have not been physically opened or used by the public as public ways for a period of twenty-one years.

On or about October 27, 1952, the defendants erected two barriers or fences across the beds of Joseph Street and Christopher Street, the effect of which was to block the ingress and egress of the plaintiffs to their respective lots from Williams Way through Joseph Street and Christopher Street. The plaintiffs notified the defendants to remove these fences a short time after their erection but the defendants refused to accede to their request. On January 16, 1953 the plaintiffs brought a bill in equity wherein they prayed, inter alia, that an injunction issue restraining the defendants from maintaining these barriers or fences and from interfering with the use of Joseph Street and Christopher Street by the plaintiffs, other owners of lots in the tract, any by the public generally. The chancellor made findings of fact and conclusions of law and entered a decree nisi in which he granted a portion of the relief prayed for. He ordered the defendants to remove the barriers they had erected and restrained them from interfering with the free and uninterrupted use by the plaintiffs of their easement of ingress and egress over the beds of these streets. However, he concluded that by virtue of the Act of May 9, 1889, P.L. 173, 36 PS ยง 1961, all rights of the public in the plotted streets were terminated since they had not been accepted or used by the public for twenty-one years and could not be opened as public streets over the land abutting the lots of the defendants without their consent. Exceptions filed by the plaintiffs and defendants to this adjudication were dismissed by the court en banc which directed that the decree nisi become the final judgment of the court.

[ 378 Pa. Page 268]

From that final decree both the plaintiffs and defendants ...


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