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COHEN v. SIMPSON REAL ESTATE CORPORATION. (06/25/56)

June 25, 1956

COHEN, APPELLANT,
v.
SIMPSON REAL ESTATE CORPORATION.



Appeal, No. 80, Jan. T., 1957, from decree of Court of Common Pleas of Lackawanna County, March T., 1955, No. 6, in case of Estelle H. Cohen, executrix of estate of William Krotosky, deceased v. Simpson Real Estate Corporation et al. Decree affirmed.

COUNSEL

J. Charles Hanahue, with him Joseph S. Needle, Warren, Hill, Henkelman & McMenamin, and Needle, Needle & Needle, for appellant.

C. H. Welles, III, with him David J. Reedy, Jr., Assistant City Solicitor, and Welles & Mackie, for appellees.

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

Author: Stern

[ 385 Pa. Page 354]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

This is an action in equity by a property owner to enjoin the City of Scranton from vacating a portion of an alley and to enjoin an abutting owner from erecting a structure thereon.

More than 100 hears ago, Scranton and Platt, a limited partnership, laid out a Town Plot of the then village of Scranton; the plot was recorded many years later in the office of the Recorder of Deeds in Lackawanna County. It embraced 232 city blocks, over 4,000 lots, 54 streets and 55 alleys. One of the blocks, designated as No. 30, lies in the heart of the City and is bounded on the north by Spruce Street, on the south by Lackawanna Avenue, on the east by Wyoming Avenue, and on the west by Penn Avenue. Extending through the block from west to east in an alley called Center Street, and extending from the middle point of this alley at right angles to it and northerly to Spruce Street is another alley called Oakford Court.

Plaintiff, Estelle H. Cohen, Individually and as Executrix of the Estate of William Krotosky, has a part interest in five lots fronting on Lackawanna Avenue, each of a width of 25 feet and extending in depth 150 feet to Center Street. These lots were sold to plaintiff's predecessors in title during the years 1854 and 1855, but the deeds of conveyance to the purchasers were not executed until several years later, namely, between 1858 and 1865, payments for the lots having been made in annual installments during the intervening period in accordance with the terms of the contracts. Meanwhile, on March 7, 1857, The Lackawanna Iron and Coal Company, which was the assignee of Scranton and Platt, the original developers, conveyed to the then Borough of Scranton, for the use of the public as highways, all the streets and alleys laid out in the Town

[ 385 Pa. Page 355]

Plot, and the Borough of Scranton adopted, ratified and confirmed the Town Plot and plan of the Borough and agreed that it would open such streets and alleys according to the plan, since which time Oakford Court and Center Street have been public streets.

By an Ordinance of March 9, 1955, the City of Scranton vacated Oakford Court from Center Street northerly a distance of approximately 200 feet. Simpson Real Estate Corporation, which, together with the City, is a defendant, owns lots abutting Oakford Court on both sides, and plans to construct a garage, at a cost of approximately $2,000,000, extending across Oakford Court from its property on the east to its property on the west of the Court, designed to accommodate approximately 500 cars and to contain selling space on the first floor. It is this structure the erection of which plaintiff seeks to enjoin. The court below refused to issue an injunction and dismissed the complaint. Plaintiff appeals from its decree.

As far as it is sought to enjoin the City of Scranton from proceeding under or in pursuance of the Ordinance on the ground that it is an invalid enactment, it is sufficient to say that the City has undoubted authority to vacate its public highways, and the courts do not inquire into its motive in exercising such right, whether, in this case, it was to benefit Simpson Real Estate Corporation or otherwise. As stated in Titusville Amusement Company v. Titusville Iron Works Company, 286 Pa. 561, ...


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