Appeal, No. 217, Jan. T., 1962, from decree of Court of Common Pleas of Northampton County, June T., 1960, No. 2, in case of George F. Coffin, Jr., Claire E. Coffin, James Fritzo et al. v. Old Orchard Development Corporation, Lester O. Kummer, Ruth N. Kummer et al. Decree reversed.
Louis J. Goffman, with him Milton B. Riskin, Burton Caine, and Wolf, Block, Schorr and Solis-Cohen, and McFadden, Riskin, McCarthy and Williams, for appellants.
Raymond J. DeRaymond, with him Coffin, Grifo & DeRaymond, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE O'BRIEN
The appellees-plaintiffs are property owners in the Old Orchard Development Corporation plan in Palmer Township, Northampton County. In early 1954, defendant began the sale of the lots in the plan, which was recorded about early May, 1954 by the defendant, Old Orchard Development Corporation, in the office for the recording of deeds in Northampton County, the recorded plan showing the lots by number and the owners at the time of recording. After placing the plan on record, the Old Orchard Development Corporation landscaped, graded and planted with ornamental shrubbery and trees, lots Nos. 44, 45, 46 and 47, the subject of controversy herein. These four lots form a block or square of approximately one acre, bounded on
the north by Heugel Street, on the east by Old Orchard Drive, on the south by Schaffer Street, and on the west by Kendon Drive. This area is referred to as the "Park". The majority of the plaintiffs herein are those who purchased property surrounding the so-called park area or lots referred to. The four lots were not offered for sale. The surrounding lots were offered and purchased by the various owners. When the surrounding property had been sold, the defendant development corporation disposed of the four lots in question for building purposes and, in fact, the property was being prepared for the erection of houses by the other defendants, when suit was instituted in April, 1960 to restrain the defendants, Mr. and Mrs. Kummer and Mr. and Mrs. Tarlowski, from proceeding with the erection of buildings on the lots and to declare the deeds from the defendant, Old Orchard Development Corporation, to the other defendants void, since the land was dedicated as a park and recreational area by a dedication to the plaintiffs and general public by Old Orchard Development Corporation.
The court in its decree nisi ordered the removal of all structures on the four lots and a return of the lots to the same condition as they were in May, 1958, including grading, seeding and shrubbing. The chancellor made findings of fact and conclusions of law, in which he held that the evidence was not sufficiently clear and convincing to establish an offer of dedication by the defendant, Old Orchard Development Corporation, and that there was therefore no dedication of the lots for park or playground purposes. The chancellor held, however, that the defendant orally represented to prospective purchasers that the adjoining real estate would always be a park or playground and that purchasers bought their lots in reliance upon these representations, whereby the seller is estopped from using the property for any other purpose than a park or for
recreation purposes. The chancellor concluded, as a matter of law, that the buyers of the adjoining land have a negative easement in the four lots, for park or recreation purposes.
Plaintiffs and defendants filed exceptions to the adjudication whereupon the court en banc entered a final decree determining the lots to have been dedicated to the public for use ...