the location of a right of way which has been granted but not located, the practicable location and user of a reasonable way by the grantee, acquiesced in by the owner of the servient estate, sufficiently locates the way. Tosh v. Witts, 1955, 381 Pa. 255, 113 A.2d 226; Taylor v. Heffner, 1948, 359 Pa. 157, 58 A.2d 450; Pennsylvania Water & Power Co. v. Reigart, 1937, 127 Pa.Super. 600, 193 A. 311. The acquiesced in location will be deemed to be that which was intended by the grant. Taylor v. Heffner, supra.
In the case at bar the roadway in question was used as a means of egress and ingress from the very outset by the plaintiff. The evidence also establishes that the plaintiff used and maintained the road in question as access to the reservoir property for a period of at least five years while the ownership of the servient estate was in the hands of the defendants. There was no other road leading to the reservoir, the surface of the servient land being otherwise unsuitable for access. If the right of way were to parallel the pipe line at all times it would require the construction of an expensive and difficult roadbed through the marshy terrain. All of these facts were well known to all parties concerned. The Declaration of Taking makes this clear. In the description of the pipe line easement there is granted the right to construct the line under the over the land. In fact, because of the character of the terrain, the line is exposed at several points. Had the parties intended this area to be the right of way there would have been no reason for granting the right to lay the pipe over the land since it is quite evident that such would be the only feasible method of road construction. Further, the Declaration of Taking, in describing the estates taken in no way associates the right of way with the water line easement. To the contrary, the right of way is included in the description of the reservoir property. Had the parties intended the right of way to parallel the pipe line at all points the logical place to indicate the presence of the way would have been with the description of the pipe line easement. Further, the Preliminary Certificate of Title described by metes and bounds the existence of the roadway in question as part of the land being examined for conveyance. Since the grantor's attorney had examined this certificate prior to the grant it further indicates that the defendant were on notice that the government intended to utilize the farm road as the location of the right of way.
Considering the almost daily use of the farm road by the plaintiff with the complete knowledge and acquiescence of both the grantor and the defendants, the continual maintenance and repair of the road by the plaintiff, and all the other factors considered in their setting at the time of the grant, it becomes apparent that the parties intended to, and did, locate the right of way over the existing farm road. Thus, the United States of America has a right of egress and ingress from the public road (Kimberton Road) to the reservoir property over the existing access road to the same extent as if the location of such road had been specifically set forth in the condemnation proceeding known as Civil Action No. 2658. Further, the plaintiff will be granted a decree permanently enjoining the defendants from interfering with the plaintiff's reasonable use of the existing access road from Kimberton Road to the reservoir property (Parcel I) as acquired in Civil Action No. 2658.
Both plaintiff and defendants have submitted proposed findings of fact and conclusions of law. The Court affirms Plaintiff's Requests for Findings of Fact Nos. 1 to 12, inclusive. The Court also affirms Defendants' Requests for Findings of Fact Nos. 1 to 15, inclusive, and denies, as stated, Requests Nos. 16 and 17.
The Court affirms Plaintiff's Requests for Conclusions of Law Nos 1 to 6, inclusive. The Court also affirms Defendants' Requests for Conclusions of Law Nos. 1, 3 and 5, and denies, as stated, Requests Nos. 2, 4, 6 and 7 to 14, inclusive.
The plaintiff will submit an appropriate order for judgment in its favor.
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