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DI CARLO v. PETRILLO (12/29/56)

December 29, 1956

DI CARLO
v.
PETRILLO, APPELLANT.



Appeal, No. 197, March T., 1956, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1952-B, No. 1630, in case of Joseph Di Carlo, Jr. et ux. v. John Petrillo et al. Decree affirmed; reargument refused January 16, 1957. Equity. Before LEWIS, J. Adjudicaiton filed awarding plaintiffs injunctive relief; exceptions to adjudication dismissed and final decree entered. Individual defendants appealed.

COUNSEL

C. Francis Fisher, with him Brenlove, Fisher, Stein & Winters, for appellants.

James A. Ashton, for appellee.

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

[ 387 Pa. Page 213]

OPINION PER CURIAM

The Order of the lower Court is affirmed on the following excerpts from the opinion of Judge LEWIS:

"The plaintiffs sought to restrain the defendants, the adjacent property owners, from using an easement over the property of the plaintiffs, alleging that the easement had been terminated.

"The plaintiffs also asked for damages, but the Chancellor found that no actual damage had been proved by the plaintiffs, and therefore, no money damages were awarded.

"There was a provision in the deed to the plaintiffs' property, which adjourned that of the defendants, to the effect that the defendants were permitted to use an auto ramp crossing over the plaintiffs' land 'so long as the second floor of (the defendants' building) is used and occupied as garage or place for keeping and storing of automobiles.'

"It was the contention of the plaintiffs that the easement had terminated when one of the defendants, Eugent Petrillo, on April 9, 1952, leased the second floor of the dominant property to Ttacey Daniels, Inc. as a manufacturing plant. The aforesaid company was engaged in the manufacturing business which had no connection whatsoever to the operating of a garage or the storing of automobiles.

"Both the plaintiffs and the defendants agree that the easement was a determinable one.

"The question before the Chancellor was whether or not the evidence was sufficient to establish the fact that the easement had terminated.

"After hearing the witnesses for both sides, studying the language used in the deed, and listening to the arguments of counsel for both parties, the Chancellor concluded that the easement contemplated the use of the second floor of the dominant property as a commercial garage or a place for the storing of automobiles, and that such use had ended when Tracey Daniels, Inc. entered into possession of the second floor and established their manufacturing plant. ...


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