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HOWARTH v. MILLER (06/27/55)

June 27, 1955

HOWARTH
v.
MILLER, APPELLANT.



Appeal, No. 341, Jan. T., 1954, from order and judgment of Court of Common Pleas No. 6 of Philadelphia County, June T., 1953, No. 8177, in case of J. R. Howarth et ux. v. Florence E. Miller and Benjamin J. Wasserby, trading as Flexrock Company and Industrial Maintenance. Judgment reversed.

COUNSEL

Abraham Wernick, with him Benjamin Jerome Shane and Hyman Shane, for appellant.

Raymond Jenkins, with him Jenkins, Bennett & Jenkins, for appellees.

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

Author: Bell

[ 382 Pa. Page 421]

OPINION BY MR. JUSTICE BELL

Plaintiffs filed a complaint to quiet title in which they sought an injunction to restrain defendants from maintaining an electric wire conduit on what they alleged was their building. Plaintiffs are the owners of premises known as 2409-2411 Federal Street, Philadelphia.

A number of years ago Richard J. McDevitt owned several lots on the north side of the 2400 block of Federal Street. In about 1913 he built on adjoining lots 2409 and 2411 a five story building. The front of this building is faced with red brick, which facing for the entire five stories extends 27 inches, or about 2 feet to the west of the dividing line between lot 2411 and the adjoining lot 2413, which contained a two story building. That the facing of 2409-11 projects beyond the party wall is clearly apparent from its position above the roof of the smaller building. The facing on the first two stories, if examined solely from the outside, could be considered from the outside as the front wall of either building; if the inside of the buildings are examined it is clear that the pilaster and the conduit are on and part of the defendants' building. McDevitt testified that the projecting facing which extends on to 2413 Federal Street was erected "just to beautify the [2409-2411] building."

In 1951 the defendants purchased from McDevitt the three lots including the aforesaid buildings and in the same year sold to the plaintiffs the lots known as 2409-2411 Federal Street with the buildings and improvements erected thereon.

In June of 1953 the defendants erected on their building a conduit through the wall which is (a) a

[ 382 Pa. Page 422]

    physical part of their property, and (b) is approximately 17 inches on their side of the party wall, and (c) is west of the plaintiffs' lot and of the main part of plaintiffs' building. Naturally, when the conduit reached the outside of the front wall, it emerged through the red brick extension which appeared to be the front face of plaintiffs' building.

Defendants contend that the deed to the plaintiffs was specific in terms and in the metes, bounds and dimensions of the property which they conveyed to the plaintiffs, and consequently plaintiffs may not now claim ownership of the two feet (27 inches) of front wall which extends beyond the boundary line of their property. If those were all the facts, plaintiffs' claim would be devoid of merit. But plaintiffs point out that the deed included the buildings and improvements ...


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