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JONES v. AMSEL. (03/18/57)

March 18, 1957

JONES, APPELLANT,
v.
AMSEL.



Appeal, No. 192, Jan. T., 1956, from order of Court of Common Pleas No. 7 of Philadelphia County, March T., 1954, No. 6071, in case of Charles H. Jones et ux. v. Joseph S. Amsel et al. Order affirmed.

COUNSEL

Elihu A. Greenhouse, for appellants.

Joseph Matusow, with him Irving Marks and Samuel Kagle, for appellees.

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

Author: Chidsey

[ 388 Pa. Page 48]

OPINION BY MR. JUSTICE CHIDSEY

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, sitting en banc, which vacated the nisi decree of the chancellor in an equity action, and transferred the case to the law side of the court.

[ 388 Pa. Page 49]

Plaintiffs and the defendants Amsel were adjoining landowners of lots overlooking the Wissahickon Valley in Philadelphia. In 1947 the Amsels, wanting their property graded, arranged with the defendant D'Angelo Brothers, Inc., excavation contractors, to grade and remove rock from their property, in exchange for which the contractors were to keep the rock removed. The contractors removed the rock from the Amsels' lot, and between November, 1951 and June, 1953, they also excavated rock from plaintiffs' property, virtually bisecting it and leaving almost half of it twelve to fourteen feet lower than the remainder.

Plaintiffs thereupon instituted an action in equity in 1954 praying for an injunction against further excavation of their land by defendants, and asking that defendants be required to either restore the property or pay damages in lieu thereof.

The chancellor, after hearings and conferences, issued the injunction, and ordered defendants either to restore the property to its former condition or to pay damages in the amount of $10,500. The complaint against defendants Edwin T., and Edith B. Weinstein, subsequent purchasers of a parcel from the defendants Amsel, was dismissed by the chancellor at that time, which dismissal is not on review here.

The plaintiffs contended that they purchased the lot in 1945 for the purpose of building a home thereon for themselves because of the unique and beautiful view that this lot afforded of the valley. Their explanation of the delay in beginning construction of that home is based on the fact that they had also purchased a farm in Quakertown at about the same time, and that they did not ...


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