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WENRICH v. MILLER (06/30/65)

decided: June 30, 1965.

WENRICH
v.
MILLER, APPELLANT



Appeal from decree of Court of Common Pleas of Lebanon County, No. 12 Equity Docket, 1963, in case of George W. Wenrich and Hilda E. Wenrich v. Harvey R. Miller and Mary S. Miller.

COUNSEL

Christian R. Gingrich, for appellants.

Thomas A. Ehrgood, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Roberts concurs in the result.

Author: Musmanno

[ 418 Pa. Page 385]

George W. and Hilda E. Wenrich owned lots in a plan of lots with Harvey R. and Mary S. Miller. For years the Wenriches made use of a 30-foot wide roadway known as Joyce Street, located within the plan, as a means of ingress, egress and regress. On November 18, 1963, the Millers, defendants here, placed obstructions across the roadway to prevent the Wenriches and others from using Joyce Street.

[ 418 Pa. Page 386]

The Wenriches (and a Mr. and Mrs. Heilman, as to whose case there has been no appeal) filed an action in equity against the Millers asking the court to restrain them from interfering with their (the Wenriches') use of the roadway. In their complaint the Wenriches made no reference to the ownership of the roadbed in question, claiming only a right of easement over the controverted land. In their description of the Wenrich lots they showed title in the roadbed to be in the Millers.

The court, however, declared a mistake in the defendants' deed, held that the 30 feet of land in question were erroneously included in the Miller deed, and that, therefore, the 30 feet were laid out by the common grantor as a roadway for the use of all those buying lots in that plan of lots.

The court had no jurisdiction in equity to determine the defendants' title to the roadbed. It is only where there is no substantial dispute on the subject that equity can determine legal title to real property: O'Dwyer v. Ream, 390 Pa. 474. See also Kurman v. Phila., 416 Pa. 376, where we said: "Plaintiffs-appellants filed a complaint in equity seeking to restrain defendant City from interfering with certain alleged property rights; defendants preliminarily objected on the ground that plaintiffs failed to state a cause of action. The lower court sustained the position taken by the defendants and dismissed the complaint, from which action plaintiffs appeal to our Court.

"At oral argument, it was acknowledged that the purpose of the action instituted by plaintiffs was to have a determination made by the court in equity to establish whether or not plaintiffs had a perpetual right-of-way over land purchased by defendants from a third person, from which land plaintiffs have been excluded and for which they desire compensation.

[ 418 Pa. Page 387]

"Equity was not the proper forum to try such issues, because there is an appropriate statutory remedy which must be pursued. Schwab v. Pottstown Borough, 407 Pa. 531, 180 A.2d 921 (1962). So that plaintiffs should not be prejudiced by any prior judicial determination, in their pursuit of compensation before a board of view for the alleged ...


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