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MAINS v. FULTON (11/22/66)

decided: November 22, 1966.

MAINS
v.
FULTON, APPELLANT



Appeal from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1965, No. 3500, in case of Charles W. Mains, Ethel Mains, his wife, and C. R. Capone v. James C. Fulton, Virginia W. Fulton, his wife, and Duquesne Light Company.

COUNSEL

James C. Evans, with him Evans, Ivory & Evans, for appellants.

Andrew L. Weil, with him Weil & Weil, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen and Mr. Justice Roberts concur in the result. Concurring Opinion by Mr. Justice Jones.

Author: Bell

[ 423 Pa. Page 521]

Defendants James C. Fulton and Virginia W. Fulton, his wife, appeal to this Court from a final judgment of the Court below in favor of plaintiffs Charles W. Mains and Ethel Mains, his wife, in declaratory judgment proceedings.

On July 1, 1960, the developers of an area known as Driftwood Acres in O'Hara Township, Allegheny County, filed of record their plan for the development of that area. The plan shows the easement of a 30-foot right of way for the transmission lines of Duquesne

[ 423 Pa. Page 522]

Light Company, in part across the rear or northerly ends of six lots including part of defendants' property.

In June, 1964, plaintiffs contracted with Duquesne Light Company to relocate its lines so that thereafter they would occupy, inter alia, the 30-foot right of way which was partly over defendants' property. When defendants refused Duquesne permission to erect its lines across their property and denied the legal existence of the right of way shown in the plan, Duquesne refused to proceed further in the relocation of its lines.

Plaintiffs thereupon brought this declaratory judgment proceeding to determine whether or not in fact and in law Duquesne possessed the easement across defendants' property. Duquesne was named as one of the defendants in these proceedings. At the trial, the Court submitted six factual questions to the jury, and thereafter gave judgment for the plaintiffs.

In Sheldrake Estate, 416 Pa. 551, 207 A.2d 802, the Court said (pages 553-554): "'(1) While the grant of a petition for a declaratory judgment is a matter of sound judicial discretion: "This Court now adheres to the view that declaratory judgment proceedings must not be entertained if there exists another available and appropriate remedy, whether statutory or not: McWilliams v. McCabe, 406 Pa. 644, 179 A.2d 222; State Farm Mutual Automobile Insurance Co. v. Semple, 407 Pa. 572, 180 A.2d 925." Lakeland Joint School District Authority v. Scott Township School District, 414 Pa. 451, 200 A.2d 748.*fn1

"'In State Farm Mutual Automobile Insurance Co. v. Semple, 407 Pa., supra, the Court said (pages 574-575): "The principles to guide the lower courts in determining whether or not a declaratory judgment ...


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