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TREXLER v. LUTZ. (11/16/55)

November 16, 1955

TREXLER, APPELLANT,
v.
LUTZ.



Appeal, No. 180, October T., 1955, from decree of Court of Common Pleas of Berks County, Feb. T., 1955, No. 1, in case of Clinton M. Trexler et al. v. Clifford G. Lutz et ux. Decree affirmed.

COUNSEL

George B. Balmer, with him David H. Roland, and Snyder, Balmer & Kershner, for appellants.

Wardell F. Steigerwalt, with him Theodore G. Confer, for appellees.

Before Rhodes, P.j., Hirt, Ross, Wright, Woodside, and Ervin, JJ. (gunther, J., absent).

Author: Rhodes

[ 180 Pa. Super. Page 25]

OPINION BY RHODES, P.J.

The plaintiff, Elton J. Trexler, filed a complaint in equity to enjoin defendants from interfering with the access by plaintiff to his woodland over a road across defendants' land. An answer by defendants contained new matter, and to this plaintiff replied. After hearing, the chancellor dismissed the complaint. Exceptions were overruled and a final decree entered. This appeal followed.

[ 180 Pa. Super. Page 26]

The road in controversy crosses a farm owned by defendants. It runs north and south; the southern terminus is a public highway. Crossing defendants' fields it extends through a tract of 110 acres of woodland of defendants to contiguous woodland of plaintiff. The length of the road is approximately 2,500 feet. About one-half of the road, being that part crossing the fields adjoining defendants' woodland, was plowed over by defendants, thus making the road through defendants' woodland inaccessible for plaintiff's use. The chancellor found that the road existed for more than twenty-one years, and had been used by plaintiff and his predecessors in title infrequently for the limited purpose of seasonal visits to the woodland of plaintiff.

In dismissing plaintiff's complaint, the chancellor concluded that plaintiff was prohibited by the Act of April 25, 1850, P.L. 569, § 21, 68 PS § 411, from acquiring by prescription or user a right to use the road where it passes through the woodland of defendants; and that any right of way through the woodland being defeated by the Act of 1850, the easement as a whole, including the way across defendants' fields, would fall.

On this appeal, appellants*fn1 have presented the question whether the Act of 1850 is applicable to prevent the granting of an injunction against interference with an easement for use of a roadway running partly through open fields and partly through woodland where the interference by defendants occurs in an open field only.

Defendants contend that the application of the Act of 1850 was not erroneous, but that the chancellor erred in finding that even a limited easement ...


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