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ROGOFF v. BUNCHER COMPANY. (05/08/59)

May 8, 1959

ROGOFF, APPELLANT,
v.
THE BUNCHER COMPANY.



Appeals, Nos. 51, 52 and 53, March T., 1959, from decree of Court of Common Pleas of Allegheny County, July T., 1957, No. 2088, in case of Leonard Rogoff et al. v. The Buncher Company et al. Decree reversed.

COUNSEL

Abraham Pervin, with him Sachs, Pervin & Kaufman, for appellants.

Samuel L. Fuss, with him Duff, Scott & Smith, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Bok

[ 395 Pa. Page 478]

OPINION BY MR. JUSTICE BOK

Plaintiffs have appealed the sustaining of preliminary objections to their complaint in equity. Its purpose

[ 395 Pa. Page 479]

    was to enjoin what they say is the excessive use of a railroad siding across their property.

The question is whether the court has jurisdiction.

In 1950 plaintiffs' mother bought ten acres of land in Leetsdale, Allegheny County, from Anna M. Smith, and then deeded them to plaintiffs in 1955. In this deed the following right was reserved to the grantor: "... the right to install, maintain and operate a single or double track railroad siding from the right-of-way of said railways company into the property of the [grantor] adjoining the above-described property on the Northwest and crossing said above-described property at such place as may be determined by conformity with the minimum curve requirements of The Pennsylvania Railroad Company for the installation of the siding."

Anna Smith also owned the property adjoining these ten acres to the northwest, consisting of twenty-four acres, and in 1951 she sold it to the defendants. The deed contained a similar reservation of the right to install a siding. Also in 1951 the defendants bought from others sixty acres of land which had never belonged to Anna Smith and which adjoined the twenty-four acres but not the ten acres.

By decree of the Court of Common Pleas of Allegheny County dated November 10, 1955, defendants built a single-track siding across plaintiffs' ten acres, and access to the property lay across this siding. Against plaintiffs' protests, defendants then extended the siding across the twenty-four acre piece of land and on to the sixty acre piece, where they built five large manufacturing plants, with spur tracks running to them. Plaintiffs aver ...


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