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WEIDENBAUGH ET UX. v. SHEFFEY (02/07/69)

SUPERIOR COURT OF PENNSYLVANIA


decided: February 7, 1969.

WEIDENBAUGH ET UX., APPELLANTS,
v.
SHEFFEY

Appeal from order of Court of Common Pleas of Montgomery County, No. 66-5330, in case of Maurice R. Weidenbaugh et ux. v. Donald G. Sheffey et al.

COUNSEL

Louis Sager, for appellants.

Ronald H. Reynier, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Concurring Opinion by Montgomery, J.

Author: Per Curiam

[ 214 Pa. Super. Page 22]

Order affirmed.

Disposition

Order affirmed.

Concurring Opinion by Montgomery, J.:

At first glance it appeared to me that Section 1105 of art. XI of The Second Class Township Code, Act of May 1, 1933, P. L. 103, 53 P.S. § 66105, was unconstitutional in that it accomplished the taking of private property for public use without compensation. If a public road used only to a width of less than 33 feet were conclusively presumed to have been dedicated to that wider dimension, with no evidence to support that fact, it would seem that the additional width would be over private property.

However, I concur in the order of affirmance which recognizes the constitutionality of the Act for the reason that the Act of April 6, 1921, P. L. 111, 36 P.S. § 1901, provided that public roads shall not be less than 33 feet wide, of which the appellants had legal notice when they acquired their property in 1967. It is also noted that in appellants' deed the road is described as a township road, 33 feet wide. See Fritchey v. Commonwealth, 331 Pa. 179, 200 A. 622 (1938).

19690207

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