Appeal, No. 176, Oct. T., 1958, from decree of Court of Common Pleas of Blair County, No. 1714 of 1956, in equity, in case of George W. Stevenson, Jr. et ux. v. Percy J. Williams et ux. Decree reversed.
Alexander A. Notopoulos, with him Martin Goodman, and John H. Hemphill, for appellants.
No argument was made nor brief submitted for appellees.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 188 Pa. Super. Page 50]
This appeal is from a final decree dismissing exceptions to a decree nisi.
Appellants own and reside at 210 Aldrich Avenue, Altoona, Blair County, Pennsylvania, being lot No. 76, section 3 in the Llyswen plot. Appellees own and reside at 208 Aldrich Avenue, being lot No. 77 in the same plot. Between 210 and 208 a 12 foot driveway
[ 188 Pa. Super. Page 51]
is located which occupies 7 feet of lot 76 and 5 feet of lot 77.
In 1923 Harry G. Martin and Ruth Martin owned and built a house on lot No. 77. In 1925 Percy J. Williams and Violet M. Williams, owned a lot and built a house on lot No. 76. Harry G. Martin died December 8, 1944 and Ruth Martin conveyed title to lot 77 to Dr. and Mrs. Spencer W. Hurst. Dr. Spencer W. Hurst and his wife conveyed title to lot 77 to George W. Stevenson, Jr. and Francis L. Stevenson. On or about November 19, 1956, appellants began to construct a carport on their lot, and appellees obtained a preliminary injunction which was made permanent on May 29, 1957. The record discloses that the Martins began using the driveway from 1923. On or about 1936, the appellants also began using the driveway.
Mrs. Martin, as stated above, sold lot 77 and the premises known as 208 Aldrich Avenue to Dr. and Mrs. Spencer W. Hurst on April 25, 1945, without mentioning the driveway. The Hursts continued to use the driveway as a passageway from the time they purchased the premises until they sold to the Stevensons. About 1951 or 1952 the Williams and the Hursts blacktopped the greater portion of the driveway and divided the costs, 7/12 being paid by the Williams and 5/12 by the Hursts.
The carport when completed will occupy approximately 1/2 of the width of the driveway. It is upon this seven foot strip of their own land that the appellants have begun the construction. This erection would ...