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BOKOCH v. NOON (01/17/66)

decided: January 17, 1966.

BOKOCH, APPELLANT,
v.
NOON



Appeal from decree of Court of Common Pleas of Fayette County, No. 2356 in Equity, in case of Gregory Bokoch v. Patrick J. Noon, Louise Noon, his wife, Margaret Noon et al.

COUNSEL

Anthony Cavalcante, for appellant.

Fred C. Adams, with him Coldren & Adams, for appellees.

Bell, C. J., Musmanno, Jones, Eagen and O'Brien, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell and Mr. Justice Musmanno dissent.

Author: O'brien

[ 420 Pa. Page 82]

Appellant is the owner of Lot No. 27 situate in the Santo Plan in Redstone Township, Fayette County, Pennsylvania. Appellees are the owners of Lot No. 26, which adjoins Lot No. 27 in the same plan. Lot No. 26, fronting on a public road, is 116 feet in width and extends back 216 feet to Santo Avenue. Lot No. 28 in the Santo Plan is contiguous to the eastern line of Lot No. 26 and is 40 feet in width, faces on the public road, and extends back along the line of Lot No. 26 108 feet to the line of Lot No. 27. Lot No. 27, 40 feet in width, extends 108 feet from Lot No. 28 to Santo Avenue and is also contiguous to the eastern line of Lot No. 26. (See plan in Reporter's statement.)

By deed dated November 16, 1948, Patrick J. Noon and Louise Noon, his wife, conveyed Lot No. 27 to the appellant. By deed dated August 24, 1948, appellees conveyed to appellant a right of way over a driveway in Lot No. 26, running to a garage on Lot No. 26 and adjacent to Lots Nos. 27 and 28, as follows: "Witnesseth, that in consideration of One ($1.00) Dollar, and other valuable consideration in hand paid, the receipt whereof is hereby acknowledged, Grantors do hereby grant and convey to Grantees a right of way over and upon a driveway presently situated on Lot No. 26 in the Santo Plan of Lots at Fairbanks, Pennsylvania, a plot of which is recorded in the Office of the Recorder of Deeds of Fayette County, Pennsylvania, in Plan Book 4, page 192, said right of way to be approximately twelve (12) feet in width and to be over that part of Lot No. 26 which lies adjacent to Lot No. 28 in said plan, and to extend to the rear side of Lot No. 27 adjoining Lot No. 26 in said plan, and to be for the sole and only purpose of passing to and from

[ 420 Pa. Page 83]

Lot No. 27 in said plan to the public road for the Grantee, his heirs and assigns."

The transactions conveying Lot No. 27 and the right of way over Lot No. 26, although consummated on different dates, were part of the same transaction. It was done so as to comply with regulations and requirements of the Veteran's Administration for front and rear access to the dwelling on Lot No. 27, so that appellant might qualify for a loan and enable him to purchase the dwelling from appellees.

At the time of the conveyance, appellant, under a separate lease agreement, had arranged to rent appellee's garage, situated at the rear of Lot No. 26 and connected to the public road by a driveway running almost the full length of Lot No. 26, for a stipulated sum, until May 1, 1957, and at which time upon termination of the lease, appellant continued to use the driveway, and on the 18th of May, 1961, he began construction of a garage on Lot No. 27 at the rear of his home.

On the 16th of May, 1961, appellees barricaded the right of way where the dividing line between Lots Nos. 27 and 28 would intersect the driveway at right angles. On the same date, appellant filed a complaint in equity, requesting injunctive relief. Appellees filed preliminary objections which were sustained by an order granting appellant leave to file an amended complaint. Appellant filed an amended complaint and appellees filed objections which were dismissed. A hearing was held on March 10, 1962, and the chancellor orally refused appellant's request for a preliminary injunction. Appellees filed an answer and amended complaint, denying they barricaded any portion of the right of way granted by them to appellant.

On January 14, 1963, the chancellor filed an adjudication and decree nisi, dismissing the complaint without prejudice to appellant's right to seek a reformation of the deed; appellant filed exceptions and ...


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