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BOYER v. BAKER. (11/16/61)

November 16, 1961

BOYER, APPELLANT,
v.
BAKER.



Appeal, No. 209, Oct. T., 1961, from order of Court of Common Pleas of Union County, Sept. T., 1960, No. 1, in equity, in case of Charles I. Boyer v. Lewis D. Baker et al. Order affirmed.

COUNSEL

Clair Groover, for appellant.

No argument was made nor brief submitted for appellee.

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

Author: Montgomery

[ 196 Pa. Super. Page 406]

OPINION BY MONTGOMERY, J.

The lower court sustained preliminary objections to the Complaint in Equity filed in this case because of (a) an adequate remedy at law and (b) the insufficiency of the complaint in alleging any enforceable rights in plaintiff.

The complaint alleges that plaintiff and defendants own land abutting on Cairo Alley in East Buffalo Township, Union County, Pennsylvania; that Cairo Alley was dedicated to public use by Harrison's Supplemental Addition to the Borough of Lewisburg, a plan recorded October 12, 1936; that Cairo Alley has been used by plaintiff and other persons of the traveling public, that "the sewer authority of [East] Buffalo Township had laid a sewer in and under the said Cairo Alley"; that "the road supervisors of East Buffalo

[ 196 Pa. Super. Page 407]

Township, Union County, Pennsylvania, have from time to time repaired and improved said alleys" (referring to Block Alley as well as Cairo Alley); that the Board of Supervisors, on petition, refused to vacate Cairo Alley and decided "to leave alley in present status". It is alleged further that the estate of Jane Harrison, deceased, conveyed Cairo Alley to defendant Bakers and that defendants have appropriated the alley to private use and closed it to plaintiff and the traveling public.

To aid the court in passing on the objections it was stipulated that the Harrison Plan aforementioned was recorded October 12, 1936, that plaintiff's property was not included in that plan but that it bordered on Cairo Alley; and that East Buffalo Township Sewer Authority had laid a sewer on Cairo Alley prior to October 12, 1957.

Plaintiff seeks to enjoin defendants from interfering with the use of Cairo Alley, and to have the deed to Bakers, and the one from Bakers to Strouse for Cairo Alley stricken from the record. The opinion of the lower court identifies these deeds to be quitclaim deeds, although title to Cairo Alley was not reversed to the owners of the plan when they conveyed lots therein.

The main issue in this case is whether plaintiff has alleged sufficient facts from which it may be concluded that East Buffalo Township ever accepted Cairo Alley as a public way. If there is no acceptance of a way dedicated in a recorded plan within 21 years, there may be no acceptance thereafter without the consent of the owners of the land on which the same has been laid out. Act of May 9, 1889, P.L. 173, No. 192, ยง 1, 36 P.S. 1961. However, this does not affect the easement rights of purchasers of lots in the plan over said way. Whittaker Appeal, ...


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