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SCHWOYER v. SMITH (04/26/57)

April 26, 1957

SCHWOYER
v.
SMITH, APPELLANT.



Appeal, No. 40, Jan. T., 1956, from decree of Court of Common Pleas of Berks County, 1953, No. 2553, in case of Jennie C. Schwoyer et al. v. Margaret S. Smith et vir. Decree vacated.

COUNSEL

C. Wilson Austin, with him James F. Marx and Charles H. Weidner, for appellants.

Lloyd M. Schaeffer, for appellees.

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

Author: Cohen

[ 388 Pa. Page 638]

OPINION BY MR. JUSTICE COHEN

Plaintiffs brought suit in the Court of Common Pleas of Berks County to compel the removal of a trellis

[ 388 Pa. Page 639]

    fence which blocks off use of a passageway through which plaintiffs claim a right-of-way. From a decree of the court en banc granting the relief sought, the defendants appeal.

The parties to this cause own immediately adjoining properties on West Main Street, Kutztown. Wholly within the defendants' building, at street level, exists a covered alleyway leading from West Main Street to the rear of both properties. In 1870 the predecessor-in-title of the defendants conveyed the property subject to an easement over the passageway granted to plaintiffs' predecessor-in-title. The reservation was repeated in subsequent conveyances of the servient tenement. On April 1, 1926, George L. Rahn and his wife acquired title to the dominant land, and on December 7 of that year that Rahns also purchased the servient tenement. Subsequently, both properties were sold, without mention of the right-of-way, at separate sheriff sales to satisfy unpaid mortgages.

Plaintiffs introduced testimony to show that the passageway was in continuous use between 1870 and 1926 by the occupants of both buildings. Since 1935 plaintiffs and their immediate predecessors have made use of the passageway although they have entrance to the rear of their property through a public alley, and to the front, directly from West Main Street. The passageway was said to be convenient for the making of business deliveries to the plaintiffs. The fence erected by the defendants in 1948 prevented further use of the passage and prompted the present proceedings. The court below found that the servitude upon defendants' property was plainly visible, continuous, and necessary to the convenient enjoyment of plaintiffs' property. Consequently, the court concluded that the easement was not extinguished even though the dominant and servient tenements were at one time in

[ 388 Pa. Page 640]

    the ownership and possession of the same person when in 1926 the Rahns ...


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