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STEWART v. WATKINS (11/28/67)

decided: November 28, 1967.

STEWART, APPELLANT,
v.
WATKINS



Appeal from decree of Court of Common Pleas of Westmoreland County, No. 3388 in Equity, 1965, in case of Frank L. Stewart, Jr., Evelyn R. Stewart, Frank L. Stewart et al. v. Paul Watkins, Joseph Yencha, and Charles Murray, supervisors of Township of Unity.

COUNSEL

George M. Lynch, for appellants.

Thomas R. Mahady, with him Mahady & Mahady, for appellees.

Robert E. Woodside, R. J. Woodside, and Woodside & Woodside, for appellees under Rule 65.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Jones and Mr. Justice Eagen join in this dissenting opinion.

Author: O'brien

[ 427 Pa. Page 558]

Appellants commenced an action in equity seeking to enjoin appellees from entering upon appellants' land and performing work on a road situated on that land. A preliminary injunction was granted but, after hearing, the injunction was dissolved and appellants were enjoined from interfering with appellees' lawful repairs and services to the road in question. Appellants' exceptions to the chancellor's decree nisi were dismissed and a final decree entered affirming the result reached by the chancellor; this appeal followed.

The question before us is narrow: "Was there sufficient evidence from which the chancellor could find that the road in question was a township (public) road?" It requires no citation of authority for the oft-repeated proposition that the findings of the chancellor, approved by the court en banc, have the same status as a jury's verdict, if they are supported by adequate evidence and ordinarily will not be disturbed on appeal.

Three methods exist for establishing the existence of a township road. The first is the introduction of

[ 427 Pa. Page 559]

    court records showing the road to have been opened under the Act of June 13, 1836, P. L. 551, 36 P.S. § 1781 et seq. The second is that provided in The Second Class Township Code of May 1, 1933, P. L. 103, § 1105, 53 P.S. § 66105, setting forth the circumstances under which there arises a conclusive presumption that a road is public. The third is by prescription, requiring uniform, adverse, continuous use of the road under claim of right by the public for twenty-one years. Appellees make no claim that the road in question is a township road other than by the second method, The Second Class Township Code.

That Code provides, in § 1105: "Every road not of record which has been used for public travel and maintained and kept in repair by the expenditure of township funds for a period of at least twenty-one years and upwards shall be deemed to be a public road of the width of at least thirty-three feet notwithstanding the fact that there is no public record of the laying out of such road or a dedication thereof for public use. In all such cases the lawful laying out and opening or dedication of such roads of the width hereinbefore specified shall be conclusively presumed." We hold that there is evidence from which the chancellor could properly have found that the requirements imposed by this statute have been met, and that the road in question is a township road. We might note that the parties did little to simplify our task in the review of the evidence, having furnished us with maps in the record and briefs which are virtually unintelligible.

The statute requires two things, carried on for twenty-one years -- public travel, and maintenance and repair by the expenditure of county funds. There is testimony from plaintiff, Frank L. Stewart, Jr., that the residents at the end of the road ran at one time or another a dairy farm and a ...


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