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MCCARGO ET AL. v. EVANSON. (03/18/59)

March 18, 1959

MCCARGO ET AL., APPELLANTS,
v.
EVANSON.



Appeals, Nos. 237 and 238, April T., 1958, from decree of Court of Common Pleas of Allegheny County, July T., 1957, No. 2321, in case of David McCargo et al. v. Jacob A. Evanson et al. Decree affirmed.

COUNSEL

Edmund K. Trent, with him Reed, Smith, Shaw & McClay, for appellants.

Ella Graubart, with her B. A. Karlowitz, and Patterson, Crawford, Arensberg & Dunn, for defendants, appellees.

David Stahl, Assistant City Solicitor, with him J. Frank McKenna, Jr., City Solicitor, for City of Pittsburgh, additional defendant, appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).

Author: Rhodes

[ 188 Pa. Super. Page 467]

OPINION BY RHODES, P.J.

This is an action in equity which was instituted by the owners of several properties in the vicinity of the T intersection of Highmont Road and Shady Avenue in the City of Pittsburgh. They sought to enjoin the defendants Jacob A. Evanson and Mildred Throne Evanson and their building contractor from constructing a driveway and sewer connection from the Evanson lot across an adjoining 10-foot strip of land to Highmont Road, a public highway. The 10-foot strip of land is within the dedicated boundary of Highmont Road, but forms no part of the actual roadway or sidewalks.

The question is whether the dedication of this strip was limited, and if so to what extent. The Evansons assert that the land was dedicated without restrictions; plaintiffs contend that the dedication was limited, and that the Evansons have no legal right to construct the proposed driveway and sewer across the said 10-foot strip to Highmont Road. All plaintiffs have driveways across the sidewalk to the cartway of Highmont Road.

On September 18, 1956, the Evansons purchased a lot which was part of a larger property formerly owned by the late Chief Justice FRAZER. On April 24, 1957, they obtained a permit from the City of Pittsburgh to construct a dwelling upon the lot and to construct a driveway and sewer connection across the disputed 10-foot strip of land to Highmont Road. The plaintiffs unsuccessfully attempted to have the building permits revoked, and, on June 15, 1957, instituted the present equity action to enjoin construction of the driveway and sewer connection. A temporary injunction was

[ 188 Pa. Super. Page 468]

    obtained upon posting a bond in the amount of $2,500. The Evansons joined the City of Pittsburgh as an additional defendant. After a hearing the chancellor filed an adjudication and decree nisi dissolving the preliminary injunction and dismissing the complaint. The plaintiffs' exceptions were heard and dismissed by the court in banc which affirmed the chancellor's decree dismissing the complaint and made absolute the decree nisi. Four of the plaintiffs (David McCargo and Gretchen B. McCargo, No. 237, April Term, 1958, and Edmund K. Trent and Helen Trent, No. 238, April Term, 1958) have appealed to this Court.

The essential issues are both factual and legal. The factual findings of the chancellor affirmed by the court in banc and supported by the evidence indicate the following.*fn1 In September, 1937, Christine Miller Clemson and her son, Richard E. Clemson, were the owners of a large tract of land on the west side of Shady Avenue adjoining on the left, but not including, the Frazer lot. By a plan of lots known as the Highmont Plan of Lots and recorded on November 18, 1937, the Clemsons laid out and dedicated to the City of Pittsburgh a public road known as Highmont Road. The plan shows the tract of land dedicated for the street as being 42 feet wide at Shady Avenue where it begins, and widening as it progresses past the property now owned by the Evansons. It then narrows to a uniform width of 32 feet at the point where the lots as laid out commence, and continues at that width ...


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