June 11, 1957
SCHMIDT ET AL., APPELLANTS.
Appeal, No. 61, April T., 1957, from decree of Court of Common Pleas of Lawrence County, Sept. T., 1954, No. 3, in case of Alvin F. Grimes et al. v. Michael R. Schmidt et al. Decree, as modified, affirmed.
Gilbert E. Long, for appellants.
Howard W. Lyon, with him Gilbert D. Levine, for appellees.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 184 Pa. Super. Page 160]
OPINION BY ERVIN, J.
This is an action in equity by property owners to enjoin the defendants from obstructing two ten-foot alleys lying adjacent to each other. These alleys run substantially in a northwardly-southwardly direction. One ten-foot alley is along the eastern extremity of a plan of lots designated Oakwood Plot and the other ten-foot alley is along the western extremity of another plan of lots designated English Manor Plot. The owners caused the two plans of lots to be prepared showing thereon streets and alleys, together with the numbered
[ 184 Pa. Super. Page 161]
lots abutting thereon; the plans were then recorded and thereafter lots were conveyed by deeds referring to the plans and their place of record and the lots were numbered in accordance with the numbers on the plans. The descriptions also showed the streets upon which the lots abutted. The descriptions in the deeds of the defendants showed that their lots abutted the alleys in question. The plaintiffs, Alvin F. Grimes and Jem Ann Grimes, own lots in both plots and the plaintiffs, Earl H. Pearsall and Martha H. Pearsall, own lots only in the Oakwood Plot. None of the plaintiffs' lots abut upon the alleys in question. The alleys are now being used by the defendants for garden purposes and lawns. Michael R. Schmidt and wife appealed from the decree of the court below directing the defendants to remove the obstructions from the alley and restraining them from interfering with the plaintiffs' easements thereover.
The principal contention of the appellants is that the lower court should not have enforced the right of easement which the plaintiffs had in the alley because of the slight benefit to the plaintiffs and the substantial hardship to the defendants. Great reliance is placed upon the language used in the case of Cohen v. Simpson Real Estate Corp., 385 Pa. 352, 123 A.2d 715, where the Court said: "It is therefore, highly doubtful whether, in any event, equity should, in the exercise of its discretion, lend its aid to the enforcement of an alleged right which is of such slight, if any, benefit to the plaintiff, and where the issuance of an injunction, on the other hand, would work a substantial hardship on the defendant and deprive the City of Scranton of the parking facilities contemplated." This was a mere make-weight to the real issue in that case. At page 356 the Court said: "The second principle, sharply distinguished from the other, is that, where there has been
[ 184 Pa. Super. Page 162]
unopened street and gulley at the present time does not defeat their easement in the alley because their easement was created by contract and is not one which arises because of necessity. The street upon which plaintiffs' lots abut could be made usable by the fill of the gulley. The alley need not be opened or used in order to create the right of easement in the plaintiffs. Their rights depend upon a contract and may not be taken away from them without just compensation therefor.
Two other questions, presented in the appellants' brief, need not be considered in this opinion because counsel for the appellants admitted that they were of no consequence and were therefore not being pressed.
We have carefully considered all the questions set forth in appellants' brief and are of the opinion that the case was properly decided by the court below.
The next to the last sentence of the final decree of the court below is as follows: "The defendants are ordered and directed to remove the barriers and other obstructions for the use of the said alley which they have erected thereon and are restrained and enjoined from interfering with the free and uninterrupted use of the restricted easement which the plaintiffs have in said ten foot alley." We modify that sentence as follows: "The defendants are ordered and directed to remove the barriers and other obstructions from the said alleys and are restrained and enjoined from interfering with the free and uninterrupted use of the easements which the plaintiffs have in said ten foot alleys."
As modified the decree of the court below is affirmed.
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