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TAYLOR v. GROSS (06/15/61)

June 15, 1961

TAYLOR, APPELLANT,
v.
GROSS



Appeal, No. 15, April T., 1961, from decree of Court of Common Pleas of Westmoreland County, No. 2904, in equity, in case of Clifford I. Taylor v. Ben Gross et al. Decree reversed.

COUNSEL

Ralph J. McAllister, with him Avra N. Pershing, Jr., and McAllister & McAllister, for appellant.

A.C. Scales, with him Henry E. Shaw, Bernard Redlich, and Scales and Shaw, for appellees.

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

Author: Ervin

[ 195 Pa. Super. Page 226]

OPINION BY ERVIN, J.

Clifford I. Taylor, the appellant, instituted an action in equity to enjoin Ben Gross, Celia Gross and Glenn Baughman, appellees, from blocking an alley. The court below, after hearing, dismissed the complaint and decreed that the plaintiff was not entitled to injunctive or other equitable relief.

The facts are as follows: Andrew Lewis McFarlane was the common source of title and he owned a 140-acre farm which had a frontage on the Lincoln Highway.

EL DORADO LOT

In 1930 McFarlane sold a lot (hereinafter called El Dorado or El Dorado lot), having a frontage of 400 feet on the highway and extending in a northwardly direction 150 feet. The deed conveying El Dorado did not mention the 15-foot wide alley and we may assume

[ 195 Pa. Super. Page 227]

    that the alley was not in existence at the time of this conveyance. In 1948 El Dorado was conveyed to Angelo J. Flex et ux., the description in the deed being the same as that in the original deed from McFarlane and the 15-foot wide alley was not mentioned. By another deed recorded at the same time in 1948 Angelo J. Flex also acquired title to a piece of land directly in the rear of the El Dorado lot and this deed described the land as "Beginning at a point on the Northerly side of a fifteen (15) foot alley at the southeasterly corner of other property of parties of the second part known as El Dorado lot; ...." The description continued by courses and distances and ended as follows: "Thence South 41 degrees 48' East, a distance of one hundred one and fifty-eight hundredths (101.58) feet to said fifteen (15) foot alley; and thence along said alley South 49 degrees 56' West, a distance of 83.07 feet to the place of beginning."

The El Dorado lot was conveyed by Flex to Gross by deed dated June 18, 1953. The deed described the lot by courses and distances and contains the following: "... thence along line common to lands herein described and lands formerly of Clifford I. Taylor [appellant] South 37 degrees 47' East 213.41 feet to a point; thence still by same, South 39 degrees 31' East 101.58 feet to a point on the westerly side line of a 15 foot wide alley; thence along the westerly side line ...


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