Appeal, No. 141, March T., 1955, from decree of Court of Common Pleas of Erie County, Sept. T., 1952, No. 16, in case of Nelson Jones et ux. v. Chester Sedwick et ux. Decree affirmed.
William W. Knox, with him Adam A. Gorski, for appellants.
Will J. Schaaf, with him James E. Marsh, and Marsh, Spaeder, Baur & Spaeder, for appellees.
Before Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeal is from a decree in equity enjoining the obstruction of a fifty foot roadway and ordering the removal of an encroaching structure.
Bruce R. Lyle and wife, in 1947, owners of land in Washington Township, Erie County, decided to subdivide it into lots; for this purpose, they engaged a surveyor who went on the premises and laid out the lots as directed by the owners; the surveyor placed iron pipes in the ground marking the location of each lot and a fifty foot drive or street which was designated "Lyle Drive"; he made a plan or blueprint of the land so subdivided; the owners then secured from the surveyor a description of lot No. 3, as shown on the plan, for the purpose of having the lot conveyed to Nelson Jones and wife (plaintiffs). The description in the deed reads: "All that certain piece or parcel of land ... bounded and described as follows, to-wit: Beginning at the Southeast corner of the piece at an iron pipe in the Westerly line or Lyle Drive, distant thereon, North 00 degrees - 37' East, 145 feet from its intersection with the center-line of U.S. Route No. 6N and South line of Tract 447; thence West along Lot No. 2, parallel with U.S. Route No. 6N, one hundred twenty (120) feet to an iron pipe in the easterly line of land heretofore conveyed by Bruce R. Lyle to Hazel M. Bull; thence along said land, North 00 degrees - 37' East, parallel with and 300 feet distant from Easterly line of the whole piece, sixty (60) feet to an iron pipe; thence east along Lot No. 4, one hundred twenty (120) feet to an iron pipe in the Westerly line of Lyle Drive; thence South 00 degrees - 37' West along the westerly line of Lyle Drive, sixty (60) feet to the place of beginning and having a one-story frame dwelling erected thereupon." In this description "Lyle Drive" is twice mentioned
as a boundary, and while lot No. 3 is not named as such, lots Nos. 2 and 4 are stated to be boundaries. Iron pipes are named as monuments in conjunction with given courses and distances. When the surveyor plotted and laid out the lots and drive, and placed the iron pipes as monuments, plaintiff Jones and owner Lyle were present; they observed the marking of the fifty foot street. Lyle took the surveyor's description of lot No. 3, about to be conveyed to plaintiffs, to a lawyer for the purpose of having a deed drawn. The description contained the notation "Description of Lot No. 3 as shown on Plot for Bruce R. Lyle ..." The plan or blueprint of the subdivision has never been recorded. On October 12, 1948, the residue of the land was conveyed by the Lyles to Clarence C. Horst and wife, excepting and reserving therefrom the premises conveyed to plaintiffs. This deed recited the date of the plaintiffs' deed and also the book and page wherein in the plaintiffs' deed is recorded. On January 15, 1951, the Horsts conveyed their property to Chester Sedwick and wife, the defendants. The deed between the Horsts and Sedwicks contained the identical reservation and exception which appeared in the Horsts' deed. Defendants have erected an addition or extension to a building on their land, which addition extended twenty-eight feet into Lyle Drive.
The deeds of both plaintiffs and defendants put the defendants on notice of the existence of the drive and plaintiffs' rights therein. Defendants, however, proceeded with the construction of the extension, ignoring the record notices and repeated written and verbal protests by plaintiffs against such erection. Defendants' chief contention is that since the plan of subdivision has not been recorded they are not bound by it. They further maintain that plaintiffs' use of the drive is limited to one of necessity, confined to its reasonable use as a
means of ingress and egress. Defendants arbitrarily fix the width of such use at eighteen or twenty feet, instead of fifty feet as shown on the plan and which was marked by iron ...