June 26, 1961
Appeal, No. 201, Jan. T., 1961, from decree of Court of Common Pleas of Northampton County, June T., 1954, No. 3, in case of Bliss Brodt et ux. v. Russell T. Brown et ux. Decree affirmed; reargument refused July 18, 1961.
Everett Kent, with him walter L. Sandercock, for appellants.
Edward J. Fox, Jr., with him Fox and Oldt, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
[ 404 Pa. Page 392]
OPINION BY MR. JUSTICE EAGEN,
This is an appeal from a decree of the court below sitting in equity, enjoining the defendants from interfering with the plaintiffs' free and uninterrupted use of an unopened, undedicated street, situated between properties of the parties litigant.
Each and every legal question raised by this appeal, with the exception of two, have been adequately discussed
[ 404 Pa. Page 393]
and correctly answered in the adjudication of Judge BARTHOLD in the court below and need no further amplification herein. We shall restrict our discussion to those questions unanswered in the lower court's opinion.
It is urged that the plaintiffs are estopped from asserting the right claimed because of laches and inequitable conduct. Titles to all of the land involved in this action stem from a common grantor. In the year 1883, the tract, then farm land, was laid out in lots, streets and alleys. The street in question appears on the recorded map of the tract as planned by the common grantor, and also appears on the borough map, wherein it is situated, dated 1934 and revised to May, 1950. While the street was never accepted for public use by the borough, the private right, or easement to use the street, acquired by the plaintiffs and their predecessors in title, was not affected by the failure of the municipality to act upon the dedication. See, Cohen v. Simpson Real Estate Corp., 385 Pa. 352, 123 A.2d 715 (1956); O'Donnell v. Pittsburgh, 234 Pa. 401, 83 Atl. 314 (1912); Clad v. Paist, 181 Pa. 148, 37 Atl. 194 (1897); as well as other cases cited by the lower court.
For several years, the plaintiffs used the plotted street as an entrance to the rear of their property, without objection from anyone. In the year 1947, the defendants attempted to exercise complete dominion over the land, and notified the plaintiffs, for the first time, that they were not to use it. This action in equity was instituted on April 26, 1954. Does this delay bar equitable relief? Under the circumstances, we conclude not.
Laches has been defined as neglect for an unreasonable and unexplained time under circumstances permitting diligence to do what in law should have been done. 13 P.L.E., Equity, § 41 (1959). However, the operation of the doctrine does not depend solely upon the passing of time: Pa. State Bd. of Med. Ed., etc., v.
[ 404 Pa. Page 394]
and essential part of the conveyance and has the same effect as if incorporated therein. The right of the purchaser, in such an instance, will be protected in equity: Ferguson's Appeal, 117 Pa. 426, 11 Atl. 885 (1888). See also, Holmes v. Longwill, 89 Pa. Superior Ct. 1 (1926).
Mr. Justice COHEN dissents.
The decree of the lower court is affirmed. Each side to pay their own costs.
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