Appeal, No. 367, Jan. T., 1957, from judgment of Court of Common Pleas of Lancaster County, July T., 1955, No. 7, in case of Farmers' Northern Market Company et al. v. Catherine C. Gallagher et al. Judgment affirmed.
Robert Ruppin, for appellants.
Harris C. Arnold, with him John W. Beyer and Arnold, Bricker, Beyer & Barnes, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
Farmers' Northern Market Company filed a complaint to quiet title to the right to the use of an alley 12 feet wide which was part of the land owned by plaintiff. Defendants, whose property abuts the alley, claimed an irrevocable right to use the alley and to maintain a fire escape overhanging the alley which they acquired by prescription.
Plaintiff*fn* is the owner of a market house property (which has since been abandoned for market purposes), situate on the northwest corner of North Queen Street and West Walnut Street and extends the length of the block to Market Street, in the City of Lancaster. Plaintiff bought the property in 1872, prior to which time it was an inn property. A strip of land approximately 12 feet wide has been used as an alley or passageway by defendants and their predecessors in title or the public, for approximately 83 years. It extends along the whole length of the market house along the back of the market house from North Queen Street to Market Street. The building on defendants' property is set back about 2 feet from their property line and thus creates a 2 feet wide strip which appears to be part of the alley, but as to which the Market Company asserts no claim.
Plaintiff concedes that this 2 feet wide strip is the property of the defendants and remains open for defendants' use. Defendants concede that they failed to prove that they had maintained the fire escape which
overhangs the alley, for 21 years. The issue on this appeal, therefore, boils down to the question of whether defendants had acquired a right to the use of the 12 feet wide alley by adverse user for over 21 years.
The jury returned a verdict in favor of plaintiff. Defendants' motion for judgment non obstante veredicto and for a new trial was dismissed by the lower court, and from the judgment entered on the verdict defendants have taken this appeal.
The evidence was conflicting as to whether the use was adverse or permissive and whether, if adverse, it was continuous and ...