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WYNN APPEAL. (03/18/59)

March 18, 1959

WYNN APPEAL.


Appeal, No. 250, April T., 1958, from order of Court of Common Pleas of Allegheny County, Jan. T., 1957, No. 739, in re petition of Margaret F. Wynn. Order affirmed.

COUNSEL

James A. Wright, for appellant.

Irwin I. Tryon, with him Alvin J. Ludwig, and Tryon & Ludwig, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Ervin, and Watkins, JJ. (wright and Woodside, JJ., absent).

Author: Watkins

[ 188 Pa. Super. Page 500]

OPINION BY WATKINS, J.

This is an appeal from an order of the Court of Common Pleas of Allegheny County dismissing exceptions to a report of a Board of Viewers denying damages to the appellant, Margaret F. Wynn.

The appellant petitioned for the appointment of viewers to assess damages to her property by reason of the change of grade and the physical grading of Pearce Road in the Township of Baldwin, Allegheny County. Viewers were appointed and the township filed with the viewers a petition for a report in limine to determine as a matter of law that the appellant was not entitled to damages by reason of a release contained in a recorded plan by appellant's predecessor in title. The said plan was recorded in the recorder's office of Allegheny County on February 13, 1942. A dedication and release appeared on the plan and it provided "This dedication and release shall be binding upon the Country Club Heights Company, its ... assigns and purchasers of lots in this plan." The said plan had noted on it "approved ... for recording purposes only" by the commissioners of the township.

On July 12, 1954, the township enacted Ordinance No. 16 of 1954 providing for the grading, paving and curbing of Pearce Road in the recorded plan and upon which road or street the appellant's property abuts.

The Country Club Heights Company, the appellant's predecessor in title, had at the time of the recordation of the subdivision plan, dedicated the street and road shown thereon to the public use and had, under seal, released and discharged the township from any liability

[ 188 Pa. Super. Page 501]

    for damages arising or to arise from appropriation of the ground for public highways and the physical grading thereof to any grades that may be established.

The board of viewers in its in limine report concluded that the dedication had not been accepted and that the failure of the township to accept the dedication by ordinance or resolution amounted to a failure of ...


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