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DIVIRGILIO v. ETTORE ET AL. (03/18/59)

March 18, 1959

DIVIRGILIO
v.
ETTORE ET AL., APPELLANTS.



Appeals, Nos. 327 and 328, Oct. T., 1958, from decree of Court of Common Pleas No. 6 of Philadelphia County, Sept. T., 1956, No. 4161, in case of William DiVirgilio et al. v. Charles C. Ettore et al. Decree affirmed.

COUNSEL

Philip Richman, for appellants.

Martin Silvert, for appellees.

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

Author: Wright

[ 188 Pa. Super. Page 527]

OPINION BY WRIGHT, J.

Owners of dwellings fronting on the east side of 51st Street in the City of Philadelphia, between Kershaw Avenue on the north and Thompson Street on the south, filed a complaint in equity against owners of dwellings fronting on the west side of Farson Street seeking to enjoin alleged encroachments upon a three foot alley separating their respective properties at the rear thereof. An answer was filed with counterclaim, to which

[ 188 Pa. Super. Page 528]

    a reply was filed. Following a hearing on March 14, 1957, both sides filed requests for findings of fact and conclusions of law. On February 3, 1958 the chancellor filed his adjudication, with decree nisi directing "that defendants move their fences back to their former line". On May 13, 1958, exceptions to the adjudication were dismissed, and the nisi decree was made final. These appeals followed. The contentions of the parties and the legal issues involved are set forth in the following excerpt from the adjudication:

"The complaint alleges that the plaintiffs are the respective owners of premises 1319, 1321 and 1323 North 51st Street, Philadelphia, and that the defendants are the respective owners of premises 1318 and 1320 North Farson Street, located immediately to the rear of plaintiffs' properties. It is further stated that all the above properties formerly were part of a single tract of ground bounded on the west by 51st Street, on the east by Farson Street, on the north by Kershaw Street, and on the south by Thompson Street; that this tract was divided into several parcels with a three foot wide alley running north and south from Kershaw Street to Thompson Street separating those premises fronting on 51st Street from those fronting on Farson Street; and that this alley has been used as a passageway and watercourse by the residents of these parcels for more than twenty-one years and that they have an easement to so use it. The complaint then alleges that in June of 1956, defendants moved the fences at the rear of their properties approximately eighteen inches into the alley, thereby interfering with the plaintiffs' use of the alley as a passageway and watercourse. Plaintiffs pray for a decree ordering the removal of these fences.

"In their answer, defendants admit ... the existence of the alley but deny that their fences encroach

[ 188 Pa. Super. Page 529]

    upon it. By way of defense, they aver that their fences are located on the boundary lines of their lots as set forth in the city plan and determined by the official city surveyor. The answer also denies that plaintiffs have acquired an easement over defendants' properties. Instead, defendants contend that it is plaintiffs' fences that are illegally ...


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