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BEGLIN v. BALAZICK (06/15/61)

THE SUPERIOR COURT OF PENNSYLVANIA


June 15, 1961

BEGLIN
v.
BALAZICK, APPELLANT.

Appeal, No. 219, April T., 1960, from order of Court of Common Pleas of Greene County, June T., 1958, No. 29, in case of Blair T. Beglin et ux. v. Charles Balazick et al. order reversed.

COUNSEL

W. Robert Thompson, with him Thompson and Baily, for appellant.

R. Wallace Maxwell, for appellees.

Before Ervin, Wright, Wooeside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Woodside

[ 195 Pa. Super. Page 496]

OPINION BY WOODSIDE, J.

This is an action to quiet title to a triangular tract of land composed primarily of an old State highway. See Pa. Rules of Civil Procedure 1061-1066.

Helen Balazick has title to a lot in Jefferson Township, Greene County, with a frontage of 120 feet and a depth of 180 feet on which is erected a hotel. When she purchased it on July 13, 1943, it fronted on a road known as Legislative Route No. 30051. Plans for relocating the road had been signed by the Governor November 17, 1942. Thereafter, the Commonwealth constructed an improved highway according to the above

[ 195 Pa. Super. Page 497]

    plan. After the new road was constructed, the Secretary of Highways, with the approval of the Governor, declared the old road vacated.

The new and old roads separate about 100 feet north of the hotel property and merge again about 200 feet south of it. At no place are the two roads more than approximately 50 feet apart. The new road is 50 feet to 75 feet from the front of the Balazick property. The only access to the new road from the Balazick property is over the old road. The highway department plans for the construction of the new road show that a ramp was to be constructed directly in front of the Balazick property providing access to the new highway. I was never constructed, and a six or seven foot embankment makes access to the new highway impossible at any place directly in front of the Balazick property.

After the construction of the new highway and the action of the secretary on the abandonment of the old highway in 1946, Mrs. Balazick and numerous people who came to her premises continued to use the old highway to get to and from her property. In 1957, Blair T. Beglin and Margaret Beglin, his wife, plaintiffs in this action, placed fence posts across the road. Balazick tore them down.

The Beglins then brought this action to quiet title to a triangular tract of approximately one-tenth of an acre composed largely of the old road in front of the Balazick and adjoining properties. The Beglins purchased the land from the Emerald Land Company for $125 on April 19, 1957. The Beglin triangular tract starts at the north corner of the Balazick lot and the old road. From there its border line passes through the old road in a northerly direction for 100 feet to the right of way of the new road; then along the edge of the new road in a southeasterly direction 252 feet (which extends for the entire distance that the Balazick property faces it); thence 164 feet in a northwesterly

[ 195 Pa. Super. Page 498]

    direction back to the northern corner of the Balazick lot. Most of the tract is composed of the old road. If Balazick is denied the right to use this part of the old road, entrance to part of her premises is impossible, and if the owner of the premises to the south were to assume a position similar to the plaintiffs, her premises would be completely surrounded without any access to the new highway.

The plaintiffs contend that the title to the land occupied by the old road within the triangle reverted to the Emerald Land Company because it was abandoned by the Secretary of Highways as a public highway, and that the company having conveyed its interest in the tract to them, they have good title.

The court below agreed, and Helen Balazick appealed, contending the road was not abandoned.

The legal procedure to abandon a highway has varied depending upon the statute under which the action was taken. The action of the Secretary of Highways, which the plaintiffs contend resulted in the vacation of the old road along the Balazick premises, was taken in January 1946, and was subject to the State Highway Law of June 1, 1945, P.L. 1242, which provides in ยง 210 as follows: "The secretary is hereby empowered to change, alter, or establish the width, lines, location, or guards of any State highway or any intersecting road in such manner as, in his discretion, may seem best, ... Where the new route, in the judgment of the secretary, supplies and takes the place of any part of the old highway, and such part is of a length of not more than two miles, the secretary, being of the opinion that such part is unnecessary for public use and travel, or burdensome or dangerous, and, having due regard for the convenience of access to the new highway by the owners of property abutting on such part, may, at any time, by written order, declare such part to be vacated. Thereafter the part so vacated shall be

[ 195 Pa. Super. Page 499]

Before the secretary had authority to abandon the old road, he was compelled by the legislature to give "due regard for the convenience of access to the new highway by the owners of property abutting" on the old highway. Here there was no consideration of "convenience of access" to the new highway by Balazick. Vacating the road left no access. Thus, under the facts of this case, the secretary could have given no regard to the convenience of access by Balazick. This constituted an evident abuse of discretion by the secretary. Furthermore, the secretary was acting upon a plan of relocation which showed a ramp from the new road in front of the Balazick property. The ramp (which was over the triangular lot now claimed by the plaintiffs) was never constructed. Instead the old road was not actually "closed to public use and travel," as provided in the above quoted statutory provision, but it has been used and travelled up to the present time without question except by the plaintiffs. Furthermore, the record indicates that all of the owners of property adjoining the old road received notice of the vacating of the old road except Helen Balazick.

No one of these circumstances may warrant a holding in this proceeding that the part of the old road connecting the Balazick premises with the new road was not properly vacated, but together, they justify such holding. She had no notice of the vacating of the old road. Even were it legally vacated, it was not in fact vacated. The secretary did not give due regard for the convenience of access to the new highway when he provided for no access whatever. We are of the opinion that the plaintiffs do not have a title to the old road which permits them to deny others the use of it.

MONTGOMERY, J., would affirm on the opinion of Judge HOOK for the court below.

Disposition

Order reversed.

19610615

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