Appeal from decree of Court of Common Pleas of Bucks County, Sept. T., 1961, No. 12, in case of Milton Hatcher v. Peter A. Chesner.
David Freeman, for appellant.
C. David Krewson, with him Stuckert, Yates and Krewson, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Justice Eagen.
This is an appeal from a final decree in equity enjoining the defendant from obstructing a right of way over his land.
The facts supported by the record and the chancellor's findings may be summarized as follows:
The plaintiff and the defendant are owners of bordering pieces of improved land. In 1894, the then
common owner of both properties created by deed a perpetual ten foot right of way over the land, now owned by the defendant, for the benefit of the owners and occupiers of the land, now owned by the plaintiff.
The plaintiff acquired title to his land on March 22, 1961; the defendant title to his land on July 31, 1957. Both the deeds of the plaintiff and the defendant and, in fact, all deeds in the chain of title since 1894 have unequivocally stated that title was subject to the reservation and the right of way.
Both pieces of land front on the same street and extend back therefrom a distance of 140 feet. On defendant's land, along the line common to that of plaintiff's there exists a continuous row of out buildings. At one point where the right of way should exist, there is a small frame shed or garage 18 feet long with double doors, approximately 9 feet in width, on both ends. On one end, these doors, when opened, extend out on plaintiff's land. For the right of way to be usable, the double doors on both ends of the garage would necessarily have to be opened and the right of way would then extend through the garage for a distance of 18 feet.
The right of way has not been used since at least 1932. Also, a tree has been permitted to grow on plaintiff's property for at least 35 years in such close proximity to the double doors of the garage, which open on his property, as to preclude their use. A board has also been ...