Appeal from decree of Court of Common Pleas of Delaware County, Sept. T., 1962, No. 2586, in case of Matthew (Mack) Margoline v. John A. Holefelder, Albert F. Holefelder, Harriet Holefelder et al.
Melvin G. Levy, with him McClenachan, Blumberg & Levy, for appellant.
C. Norwood Wherry, with him Albert E. Holl, Jr., for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell and Mr. Justice Eagen dissent and would affirm.
Plaintiff is the owner of record, since 1936, of a lot which is improved with various structures. Immediately adjacent to plaintiff's property is defendants' lot which is also improved. Vehicular traffic over defendants' lot created a driveway running to plaintiff's property. The driveway was used, among other things, for ingress and egress by plaintiff, his family, his tenants, and servicemen.
Previous to plaintiff's use, his predecessors in title used the driveway. Defendants sought to introduce testimony that plaintiff's predecessors in title utilized the driveway with the permission of the defendants. The trial judge had the testimony stricken at the trial, but later chose to consider it in his determination.
The use by plaintiff was without request and without oral objection by defendants. In 1944, defendants blocked the driveway for about two days with the intention of preventing plaintiff's use. At other times the driveway was obstructed by defendants or others incidentally to other activities.
In 1962 defendants permanently blocked off the driveway and plaintiff instituted this suit to obtain legal recognition of a claimed prescriptive right of way over defendants' property.
The chancellor found that plaintiff's use was neither adverse nor continuous. In finding the use not continuous the chancellor did not find that the use was insufficient, but rather found the use to be interrupted. He relied on the fact that the defendants had obstructed the driveway on numerous occasions, and on many of those occasions had also placed signs stating that the driveway was closed. In doing this, the court below was in error. In order for the continuity of adverse use to be interrupted, the obstruction must be in fact an interruption and must be accomplished with that intent. Restatement, Property, § 459 (1944), Johnson v. Happ, 1 Bucks 81 (C.P. 1950).
The blockage in 1944 showed the requisite intent, but defendants could not show that the barricade in fact blocked anyone's passage. The witness on this point testified that he saw no one either attempt to tear down the ...