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RUSCIOLELLI v. SMITH ET UX. (06/15/61)

June 15, 1961

RUSCIOLELLI
v.
SMITH ET UX., APPELLANTS.



Appeal, No. 285, April T., 1960, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1959, No. 2908, in case of Arthur P. Rusciolelli et al. v. James J. Smith et ux. Decree affirmed.

COUNSEL

Walter W. Riehl, for appellants.

Harry Ravick, for appellees.

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

Author: Montgomery

[ 195 Pa. Super. Page 563]

OPINION BY MONTGOMERY, J.

This is an appeal from a final decree in equity enjoining the defendants-appellants from interfering with the appellees' use of a walkway easement and compelling them to restore a set of steps they had removed.

On May 23, 1956 the appellants owned a lot with a dwelling house erected thereon in the Borough of Bethel,

[ 195 Pa. Super. Page 564]

Allegheny County. This lot, hereinafter referred to as the Mollenauer lot, had its frontage on Railroad Street and the right of way of the Pittsburgh Railways Company. The rear of same abutted the rear of lot 5 in the Hultz Manor Plan. Didion Brothers, Inc., owned lot 5 and many other lots in said plan.

On May 23, 1956 appellants granted to Didion Brothers, Inc., its successors and assigns, an easement over their Mollenauer lot in the following language: "... free and uninterrupted use, liberty and privilege of ingress, egress and regress in and upon all that certain lot or piece of ground situate in the Borough of Bethel, County of Allegheny and State of Pennsylvania, a description of which is hereto attached, marked Exhibit 'A' and made part hereof, together with the free ingress, egress and regress to and from the said property of Didion Brothers, Inc., its successors and assigns, at all times, into, upon and out of said right of way or easement, it being further understood that the said right of way shall be used only for the purpose of installing and constructing a sanitary sewer in, through and over the said premises in accordance with the specifications of the Borough of Bethel and for use as a walk way by pedestrians from Hultz Manor Plan of Lots to and from Pittsburgh Railways Company car stop."

During these negotiations between appellants and Didions, for the aforesaid easement, the appellants expressed a desire to purchase lot 5 aforesaid which had a new house thereon. These negotiations ripened into a sale and the lot and house were conveyed to them by Didions by a deed of the same date, May 23, 1956, which contained the following: "Subject also to an easement across the rear of the premises for sanitary sewers as may be required by the municipal ...


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