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BIERKAMP ET UX. v. RUBINSTEIN (10/03/68)

decided: October 3, 1968.

BIERKAMP ET UX., APPELLANTS,
v.
RUBINSTEIN



Appeal from judgment of Court of Common Pleas of Delaware County, No. 8939 of 1964, in case of Charles E. Bierkamp et ux. v. Mark Rubinstein et al.

COUNSEL

Gerald A. Gleeson, Jr., with him Edward D. Slevin, John M. Bernard, and Montgomery, McCracken, Walker & Rhoads, for appellants.

Fronefield Crawford, Solicitor, for township, intervening appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Concurring Opinion by Mr. Justice Jones. Concurring Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Roberts.

Author: Eagen

[ 432 Pa. Page 91]

This is an action for a declaratory judgment brought by appellants to determine the easement rights of certain neighboring property owners, the defendants below, in a 10-foot wide alley leading from the rear of appellants' premises which front on Lancaster Avenue, Radnor Township. The action also seeks a declaration of the responsibility of the respective parties for repair and maintenance of the said alley.

The alley (hereinafter the side alley) is located on the westerly side of the appellants' premises and extends

[ 432 Pa. Page 92]

    to the front thereof on Lancaster Avenue. All of the properties involved extend southwardly from Lancaster Avenue about 200 feet to what is now School Lane, a public street. Prior to 1949, however, there was a 10-foot alley (hereinafter rear alley) which ran along the rear of all the properties and connected with the side alley, which in turn connected with Lancaster Avenue, on which all the respective properties fronted. At one time, these two alleys together provided the only means of egress and ingress to and from the rear of the respective properties and Lancaster Avenue.

Both of these alleys had their genesis as easements by virtue of a 1904 deed which provides as follows: "Together with the free and common use, right, liberty and privilege of said 10 feet wide alley or roadway leading westward and communicating with another 10 feet wide alley or roadway leading northward along the east line of land of A. Lienhardt into Lancaster Avenue in common with the owners or occupiers of lots abutting thereon on the north and east."

In 1949, the owners of all the premises on which the 10-foot wide rear alley abutted conveyed by deed of dedication to the Township of Radnor their interest therein as well as ten additional feet from the rear of their premises to be used as a public road. Radnor Township intervened in these proceedings contending that, since it had acquired the rear alley, it had the right to the use of the side alley also because the grant of the right of way to the township implied a conveyance of that easement also. The court below took testimony and made findings of fact among which was the finding that the side alley had been openly used for the past 50 years by members of the public as well as by the dominant and servient tenements. It ruled that the Township of Radnor, by the above referred to deed of dedication, as a grantee of a portion

[ 432 Pa. Page 93]

    of the premises of the several dominant tenements, obtained the same rights as its grantors had in the side alley. It then further ruled that the township acquired a right "on behalf of the public" to use the side alley and that, as a consequence, the township was responsible for its maintenance. There was no finding by the court below that the use by the public was adverse. Indeed, during the hearing, counsel for the township expressed doubt that any public prescriptive right in the side ...


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