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BENNETT ET AL. v. SHELLENBERGER (11/17/66)

decided: November 17, 1966.

BENNETT ET AL., APPELLANTS,
v.
SHELLENBERGER



Appeal from judgment of Court of Common Pleas of Union County, Feb. T., 1964, No. 115, in case of Daniel R. Bennett et al. v. Glenn M. Shellenberger et al.

COUNSEL

Carl Rice, for appellants.

No argument was made nor brief submitted for appellees.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Spaulding, JJ. (Hoffman, J., absent). Opinion by Ervin, P. J.

Author: Ervin

[ 208 Pa. Super. Page 494]

This is an appeal by the plaintiffs from a declaratory judgment entered in the court below. No argument was made nor brief submitted by the defendants.

The facts as they appear in the opinion of the court below are as follows: On December 26, 1963, David E. Kuhns and Marjorie Kuhns, his wife, plaintiffs, brought an action in equity against Myles L. Young, defendant, seeking to restrain the defendant from removing

[ 208 Pa. Super. Page 495]

    a fence which the plaintiffs had erected across the road in question.

On the same date Daniel R. Bennett and Helen M. Bennett, his wife (hereinafter referred to as the Bennetts), and David E. Kuhns and Marjorie Kuhns, his wife (hereinafter referred to as the Kuhns), brought an action at law in the form of a petition for a declaratory judgment against Glenn M. Shellenberger and Vivian E. Shellenberger, his wife (hereinafter referred to as the Shellenbergers), and Myles L. Young and E. Mae Young, his wife (hereinafter referred to as the Youngs). This petition sought an adjudication of the rights of the parties to the use of the said road.

In the equity action the defendant filed preliminary objections averring that the plaintiffs had a full and complete remedy at law, and, after argument, the court below ordered that the complaint in equity be certified to the law side of the court to be consolidated for trial with the issues raised in the declaratory judgment action.

The plaintiffs, the Bennetts, are the owners of a tract of land containing approximately one acre, which is located along the northern side of Legislative Route No. 59023, which is commonly known as the "Pleasant View Road." This tract is a portion of a larger tract of land which was purchased by the Bennetts from John G. Bennett by deed dated August 2, 1949.

The adjoining property along the northern side of Pleasant View Road to the west is owned by the defendants, the Shellenbergers, who held title by virtue of a deed from Franklin A. Yocum et ux., dated July 19, 1961. ...


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