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RYAN v. HUDAK (11/13/62)

November 13, 1962

RYAN
v.
HUDAK, APPELLANT.



Appeal, No. 213, Jan. T., 1962, from decree of Court of Common Pleas of Montgomery County, June T., 1959, No. 35, in case of Thomas B. Ryan and Elizabeth H. Ryan, his wife, v. Rhinehart S. Hudak. Decree affirmed.

COUNSEL

John E. Landis, for appellant.

No argument was made nor brief submitted for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Eagen

[ 409 Pa. Page 212]

OPINION BY MR. JUSTICE EAGEN

The plaintiffs, Thomas B. Ryan and Elizabeth H. Ryan, his wife, filed a bill in equity seeking to enjoin the defendant, Rhinehart S. Hudak, from closing and obstructing a lane or roadway leading from Valley Forge Road to their property in Worcester Township, Montgomery County, Pennsylvania. After answer filed,

[ 409 Pa. Page 213]

    a hearing ensued and the chancellor entered a decree nisi granting the prayer of the complaint. Defendant's exceptions to this ruling were subsequently dismissed by the court en banc and the injunction made permanent. The defendant appeals.

The material facts, none of which are in serious dispute, are as follows:

The plaintiffs and the defendant are owners in fee of adjoining tracts of land. The plaintiffs acquired title by deed, dated December 16, 1958. The defendant acquired title, by deed, dated August 19, 1946. Both tracts had a common owner (John Boileau) in 1828, and for some years following. The present dispute hinges upon the interpretation of an expressed reservation contained in a deed in the defendant's chain of title, which reads as follows: "Excepting and reserving to the heirs of John Boileau forever the free and uninterrupted use and privilege to cleanse and repair the race or water course to the mills of the late John Boileau through the hereby granted premises as also of the road leading to said mills through the same and the privilege to the heirs and assigns of the said John Boileau forever on either side of said mill race to enter and drive wagons, carts and other carriages, to mend and repair said race or mill road, also the privilege of using the surplus water to water his meadow at all seasons and times when it can be spared from the mills of the said now or late Boileau."

The "road" referred to in the above reservation begins on plaintiffs' land on Valley Forge Road, a public highway, and extends for approximately one-fifth of a mile (in part over defendant's land) to the plaintiffs' house and to another residence to the rear thereof, as well as to the mill site mentioned. The road is improved with ...


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