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CAPOZZI v. CUMMINS. (03/24/60)

March 24, 1960

CAPOZZI, APPELLANT,
v.
CUMMINS.



Appeal, No. 112, April T., 1959, from decree of Court of Common Pleas of Washington County, No. 5351, in equity, in case of Michael J. Capozzi et al. v. Clifford D. Cummins et ux. Decree reversed.

COUNSEL

Adolph L. Zeman, with him Robert L. Zeman, and Zeman & Zeman, for appellants.

Andrew W. Cummins, for appellees.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).

Author: Gunther

[ 191 Pa. Super. Page 501]

OPINION BY GUNTHER, J.

This appeal is from the dismissal of a complaint in equity filed to prevent the obstruction of a public street. On August 20, 1956, Michael J. Capozzi and Anthony E. Capozzi filed their complaint alleging that they are owners of a piece of ground in the First Ward of the Borough of Canonsburg, Washington County, bounded on the south by Water Street, purchased by them on September 13, 1948. Clifford D. Cummins and his wife are the owners of an adjacent piece of ground, also bounded on the south by Water Street, which they purchased on October 11, 1943. It was alleged that the defendants erected iron posts across Water Street from a prolongation of their easterly property line so as to obstruct the use of Water Street by plaintiffs. It was further alleged that Water Street was

[ 191 Pa. Super. Page 502]

    a public street and has been used as such by the public for many years as well as the owners, tenants and occupiers of the parcels of ground involved here as well as the predecessors in title. Defendants denied that Water Street was a public street and that plaintiffs had any right to complain. It was further alleged that Water Street was never dedicated nor accepted as a public street by the Borough of Canonsburg and that no private right to use said street by way of an easement was obtained by plaintiffs or their predecessors in title.

A hearing was held; testimony was taken, and certain documentary evidence was introduced. At the conclusion of said hearing, the court below made findings of fact and conclusions of law in which the contentions of the defendants were sustained and the complaint was dismissed. From this adjudication, exceptions were filed and argued, and the majority of the court en banc sustained the chancellor. Previous to this adjudication, however, plaintiffs petitioned the trial court to open the adjudication so that after-discovered evidence may be presented, consisting of certain minutes of borough council relating to Water Street and two ancient plans or maps. One of these plans purported to show that the road "from John Canon's Mill to Jacob Bausman's Ferry opposite Pittsburgh" (now Water Street) was considered by a board of viewers at No. 1 June Term, 1784 of Washington County. The other plan purported to show a draft of the Borough of Canonsburg showing the location of Water Street as well as the other streets then in the borough, indicating that Water Street was established and located long before the opening of Pike Street which is the main street in said borough. An answer was filed to this petition and, after argument, this petition was refused on the ground that such evidence was merely cumulative and some of it was clearly irrelevant.

[ 191 Pa. Super. Page 503]

From the final adjudication, one of the plaintiffs, Anthony E. Capozzi, filed this appeal claiming that the adjudication of the court below in determining that Water Street was not a public street, and in holding that no right to an easement exists in a street abutting the property in question were in error.

Preliminarily, appellees urge that the findings of fact made by the chancellor, affirmed by the court en banc, have the effect of a verdict of a jury and cannot be reversed on appeal in the absence of clear error: Worster Motor Lines, Inc. v. Ross, 396 Pa. 490, 152 A.2d 767; Union Trust Company v. Schreck, 335 Pa. 190, 6 A.2d 428. In view of the conclusions ...


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