Appeal, No. 292, Oct. T., 1957, from decree of Court of Common Pleas of Lehigh County, June T., 1955, No. 80, in case of Harry W. Gogel et ux. v. Stephen Blazofsky et ux. Decree reversed.
W. Hamlin Neely, for appellants.
James L. Weirbach, for appellees.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 187 Pa. Super. Page 33]
This appeal is from the final decree of the court below compelling specific performance for the conveying
[ 187 Pa. Super. Page 34]
of a parcel of real estate based upon an oral understanding or agreement. The parties to this appeal are adjoining property owners of real estate situate on Reliance Street, Egypt, Lehigh County. Both properties front on Reliance Street on the east and the northerly property line of appellants' land is also the southerly property line of appellees' land. Both properties have dwellings erected thereon and ingress and egress to and from appellants' property from Reliance Street is possible through a dirt driveway which is mostly on appellants' land. However, a part of said driveway, running in a westerly direction from Reliance Street to a garage, extends northwardly and on property of appellees' land.
On April 28, 1955, appellees filed an action in ejectment against appellants, alleging that the driveway of appellants encroached on their land. To this an answer was filed alleging title by adverse possession. The action was listed for trial on May 1, 1956, at which time counsel for both sides appeared in court and the case was continued pending settlement. This action was taken pursuant to previous attempts at settlement, whereby appellees were to convey to appellants that portion of said driveway which allegedly encroached upon appellees' land and whereby appellants were to pay appellees the sum of $500.00 reserving to said appellees an easement and right of way through the said driveway and across that portion of land to be conveyed. However, difficulties arose as to whether such easement should be reserved to appellees only during the time appellees had title to the property serving such easement, for term of year, for life, or a perpetual easement. The day previous to the request for continuance, counsel for the respective parties agreed that the easement to be reserved be limited to the life of the appellees and that the costs of survey and recording
[ 187 Pa. Super. Page 35]
costs be borne equally. Settlement, however, was never made and during the early part of May, 1956, appellants discharged their then counsel. All agreements relating to the settlement, to the terms of conveyance and the reservation of an easement as well as authority of counsel for appellants were oral.
On July 30, 1956, appellees presented a petition in the court below praying for a rule to show cause why appellants should not comply with the terms of the alleged agreement as "announced in open court for and in their behalf by their attorney on May 1, 1956." In this petition the facts herein referred to were substantially set forth as well as the tendering of said deed and refusal of the same by appellants. On August 1, 1956, a rule to show cause issued and appellants filed an answer in which the agreements of settlement were denied as well as authority of their then counsel, and stated that all of these alleged agreements, as well as authority of counsel, were oral, and such oral agreements were barred by the Statute of Frauds, the Act of March 21, 1772, Smith Laws 389, section 1, 33 P.S. section 1. After hearing and arguments, the court below found that the conveyance by appellees to appellants of title for the land encroached upon would be within the Statute of Frauds, but since appellees are willing to execute the deed, the question of the Statute of Frauds does not arise. The court below further found in connection with the easement that the statute does not arise to the extent that the easement is a reservation out of appellees' grant since that would simply ...