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WAMPLER v. SHENK (06/26/61)

June 26, 1961

WAMPLER
v.
SHENK, APPELLANT.



Appeal, No. 259, Jan. T., 1961, from decree of Court of Common Pleas of Lebanon County, No. 1 Equity Docket, 1960, in case of Isaac J. Wampler et al. v. Roy H. Shenk et al. Decree affirmed.

COUNSEL

Calvin D. Spitler, for appellants.

J.R. Whitman, with him L.E. Meuer, and Meyer, Brubaker & Whitman, for appellees.

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

Author: Eagen

[ 404 Pa. Page 396]

OPINION BY MR. JUSTICE EAGEN.

In this action in equity, defendants appeal from a decree of the court below granting plaintiffs injunctive relief.

Plaintiffs own a farm consisting of 74 acres which adjoins and is contiguous to a farm owned by the defendants consisting of 71 acres. A lane, or road, beginning at a point on Pennsylvania State Highway, No. 38004, runs in a westerly direction through a portion of the defendants' farm and continues on through the farm of the plaintiffs, terminating at a point located on Township Road, No. 515, in Annville Township, Lebanon County.

The plaintiffs filed a complaint in equity alleging that the right to use the lane, or road, had been freely enjoyed by themselves and their predecessors in title for many years; that recently, the defendants had erected a wire and other barricades across it obstructing plaintiffs' use thereof. The defendants answered asserting that the two farms involved were originally a single unit, subsequently divided and conveyed by the common owner, and that the use of the roadway

[ 404 Pa. Page 397]

    was by permissive grant and not adverse. At the hearing, defendants' counsel stated, "It is admitted the plaintiffs' predecessors in title made use of the defendants' lane and the land between the two farms for a period of more than fifty years."

The chancellor, whose findings of fact and conclusions of law were affirmed by the court en banc, found that the roadway had been used by the plaintiffs and their predecessors in title, and by the public generally, for upwards of fifty years; that such use was "adverse, notorious and hostile"; that starting in the year 1959, the defendants had obstructed passage through the lane and prevented the free use thereof by the plaintiffs; and he entered an order directing the defendants to restore the roadway to its original condition and to refrain from obstructing plaintiffs' free use thereof.

It appears that the entire farm land concerned was at one time owned by Michael Gingrich and his wife. On December 23, 1859, they conveyed that portion thereof, which is now the defendants' farm, to their son, David. On the same day, they conveyed the remaining portion to their son, William. This presently constitutes the plaintiffs' farm. The deed to David provided, inter alia: "The said David B. Gingrich, his heirs and assigns, shall have the right to water his or their cattle at the creek running through the Plantation sold by said Michael to his son William in the lane..." The deed to William provided, inter alia: ...


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