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HATALOWICH v. NAGY ET UX. (11/15/56)

November 15, 1956

HATALOWICH
v.
NAGY ET UX., APPELLANTS.



Appeal, No. 10, Apr. T., 1956, from decree of Court of Common Pleas of Fayette County, No. 2146, in equity, in case of Anna Hatalowich et al. v. Thomas A. Nagy et ux. Decree affirmed.

COUNSEL

Samuel J. Feigus, with him Thomas J. Kalman, for appellants.

Arthur J. Diskin, for appellees.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).

Author: Gunther

[ 182 Pa. Super. Page 193]

OPINION BY GUNTHER, J.

This is an appeal from a decree of the Court of Common Pleas of Fayette County, sitting in equity, enjoining the erection of a barricade across a roadway traversing a portion of property in Perry Township, Fayette County, Pennsylvania.

On February 2, 1954, appellees filed their complaint in equity against Bertha M. Nagy seeking to enjoin her from barricading an alleged roadway 25 to 30 feet in length, the width of a car or truck, across a portion of her property which intervened between public highway Route 481, a Perry Township road, and the property of the appellees. The complaint averred that the said roadway had existed and had been marked

[ 182 Pa. Super. Page 194]

    out and used for a period of more than fifty years by the appellees' predecessors in title and themselves, which use was open, notorious, continuous and adverse to her and her predecessors in title. The complaint also averred that the roadway and its use was necessary to the full and proper enjoyment of the property of the appellees. On March 12, 1954, Bertha N. Nagy filed her answer denying the averments of the complaint.

The first hearing in the case was held by the late Judge H. VANCE COTTOM on April 7, 1954. Judge COTTOM passed away on November 21, 1954, before the defendant had presented her testimony. On February 24, 1955, counsel for both parties stipulated that appellants were the lawful owners of the intervening premises, formerly owned by Bertha N. Nagy, and stipulated that Thomas A. Nagy and Phyllis Nagy, his wife, be substituted as defendants. A final hearing was held before Honorable SAMUEL D. BRAEMER on February 23, 1955, at which time defendants presented their testimony and plaintiffs presented their rebuttal testimony.

Homas A. Nagy and Phyllis Nagy, his wife, are the owners of a tract of land situate in Perry Township, Fayette County, Pennsylvania, containing an area of 0.355 of an acre conveyed to them by deed of Bertha N. Nagy, dated June 23, 1949 and duly recorded in the recorder's office of Fayette County, Said tract of land is contiguous on the south and southeast portion thereof with land of the appellees for a distance of 53 feet along the southerly dividing line. Just inside of the appellants' land, and running along the southerly boundary ...


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