Appeal from decree of Court of Common Pleas of Lehigh County, Sept. T., 1963, No. 10, in case of Charles J. Bieber v. George D. Zellner and Celia L. Zellner.
Richard J. Makaul, with him George J. Joseph, and Joseph and Kellar, for appellant.
W. Hamlin Neely, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen.
This appeal is taken from the decree of the lower court, en banc, which refused to enjoin defendants from using a roadway owned by the plaintiff.
In 1941 plaintiff acquired thirteen acres of land on a portion of which he constructed a residence. In 1955 he acquired a strip of land about 1,000 feet long (east to west) immediately to the north of his other land. There is on this strip a dirt roadway which connects two public roads, one on either end of the strip. Plaintiff, commencing in 1959, conveyed three tracts of land to the south of the dirt road, on each of which a residence has been built. In one of the deeds plaintiff described the property as follows: "Beginning at an iron pin at a proposed public road leading to the Township
road # 498 . . . ." At least one of the other two deeds is very similar. The occupants of these homes, as well as the plaintiff, use the dirt roadway for ingress and egress, service and deliveries. The roadway is, apparently, also available for use by the general public. Plaintiff has several times made an offer of dedication of the road to the township, but this offer has always been refused.
In 1960, defendants purchased a tract of land abutting the roadway to the north, opposite the plaintiff's house. Defendants did not purchase the land from plaintiff or from any of his grantees. Defendants have beneath their home a garage to which they gain access by the roadway in question. When defendants purchased their house there was a stone driveway giving access to the garage. They removed the driveway, however, prior to this litigation. They have also installed a septic tank beneath the path of the former driveway, the pipes of which might be damaged if a car were to be driven over it. In 1963, plaintiff blocked defendants' access to the roadway, and thereafter instituted this litigation.
Defendants press upon us the arguments that they are beneficiaries of an implied covenant and that they have an irrevocable license permitting their use of the roadway.
It is the law of this Commonwealth that where there is a deed from a grantor which uses as a boundary monument a private road owned by the grantor there is a dedication to the public and the purchaser of the abutting tract obtains by implied covenant an easement that he may use the street and that all persons may use it. Vinso v. Mingo, 162 Pa. Superior Ct. 285, 57 A.2d 583 (1948). This same implication arises where properties are sold from a plot plan showing ...