Appeal, No. 62, March T., 1954, from decree of Court of Common Pleas of Erie County, Sept. T., 1951, in Equity, No. 12, in case of James D. Eagan et ux. v. Theodore M. Nagle and W. Jacques Schuler et ux. Decree affirmed. Bill in equity. Before LAUB, J. Adjudication filed finding for defendants; exceptions to adjudication dismissed and final decree entered dismissing bill. Plaintiffs appealed.
Maurice J. Coughlin, for appellants.
William W. Knox, with him Enoch C. Filer, for appellees.
Before Stern, C.j., Stearne, Jones, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Plaintiffs' appeal is from a decree of the court below dismissing their bill in equity in which they sought to enjoin defendants from preventing their use of an alleged right of way over defendants' properties. Defendants denied the existence of any such easement.
In 1923, William Irwin Arbuckle, who owned 18 acres of land in Mill Creek Township, Erie County, deeded to John H. Russell the westernmost part of the tract extending some 600 feet from north to south and 200 feet from east to west. This conveyance contained no express grant of any right of way across Arbuckle's remaining property to the east. Russell and wife conveyed this property in 1940 to George F. Hall and wife, who, in turn, deeded it in 1948 to James D. Eagan and wife, the present plaintiffs. While, at the time of the Arbuckle deed to Russell, or perhaps somewhat later, a roadway extended eastwardly across Arbuckle's remaining land from a point about 190 feet north of the south line of the property conveyed to Russell, plaintiffs claim that Russell acquired an easement over that road by implication is without justification. Even if the road did then exist on the ground there is nothing in the record to indicate how long it had been there, whether it had been used for the benefit of the land conveyed to Russell, and whether it was
apparently intended to be of a permanent nature. Nor did it constitute a way of necessity for ingress and egress because the Russell property opened at its southern end onto Ardmore Avenue, a public highway.
In 1925 and 1926 Arbuckle conveyed to Samuel W. Landis, parcels of land extending from north to south along the entire easterly line of the Russell property and for a distance of 100 feet from east to west. These conveyances for the first time referred to the road here in controversy as 40 feet in width, and granted to Landis a right of way eastwardly over Arbuckle's remaining property to Wayne Avenue, a public street. The Landis tract was subsequently conveyed by him to William W. Woodbridge and by the latter and wife to W. Jacques Schuler and wife, who are two of the present defendants.
In 1927 Arbuckle conveyed all the rest of his property to Phoebe A. Russell, and she, with her husband, John H. Russell, immediately thereupon conveyed to defendant Theodore M. Nagle -- with a later deed also in 1937 -- a tract extending from north to south along the easterly line of the Landis property for a width from east to west of 200 feet, which conveyance included the fee simple title to the 40 foot right of way on the property.
As a result of these various conveyances the situation on October 15, 1937, was that John H. Russell owned a strip of land 200 feet in width on the westerly part of the original Arbuckle tract, Woodbridge (who had acquired the Landis property) owned a strip 100 feet in width immediately to the east of the Russell property, Nagle owned a strip 200 feet in width immediately to the east of the Woodbridge property, and Phoebe A. Russell owned the land adjoining ...