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FEC v. MICKAIL ET UX. (05/27/70)

decided: May 27, 1970.

FEC
v.
MICKAIL ET UX., APPELLANTS



Appeal from decree of Court of Common Pleas of Allegheny County, Oct. T., 1963, No. 3296, in case of Anna Fec v. Leo G. Mickail, Sr. et ux.

COUNSEL

Larry P. Gaitens, with him Lucchino, Gaitens & Hough, for appellants.

John J. Dean, with him Dean & Dean, for appellee.

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

Author: Jones

[ 438 Pa. Page 440]

On May 17, 1926, Anna Fec and her husband, Michael Fec, purchased premises known as 1521 Superior Avenue in Pittsburgh, Pennsylvania. The only means of access to the garage at the rear of their property was across the rear of the adjacent property, known at 1519 Superior Avenue. The Fecs proceeded to use this pathway to get to their garage, as their predecessors in title also had done. On July 23, 1945, Mr. and Mrs. Fec were contacted by an attorney for the owners of 1519 Superior Avenue, and directed to cease using the right of way. According to Mrs. Fec, they nevertheless continued to cross their neighbor's land because they had been told that, the path having been used for more than twenty-one years, they now had a prescriptive right to continue to use it. Michael Fec died on August 2, 1951, and Anna Fec is now sole owner of the property.

Leo G. Mickail, Sr., and Rose Mickail, his wife, purchased 1519 Superior Avenue on September 19, 1957. They erected a gateway across the path in question in April of 1959, and gave Anna Fec a key to the gate. However, the Mickails subsequently took the key back

[ 438 Pa. Page 441]

    from Mrs. Fec and erected a barricade, preventing her access to the garage.

In 1963 Mrs. Fec filed a complaint in equity, in the Court of Common Pleas of Allegheny County, asserting the foregoing facts and requesting appropriate equitable relief, to permit her once again to use the path across 1519 Superior Avenue to reach her garage. The trial chancellor, after hearing all the testimony, made the following finding of fact: "That the use of the [pathway across 1519 Superior Avenue] for the purposes of ingress, egress and regress to and from the property of the plaintiff by vehicle and foot has been continuous, open, visible, notorious, uninterrupted and hostile for a period of years in excess of thirty-two." Accordingly, the chancellor ruled that a prescriptive easement had been created, by adverse usage for more than twenty-one years, and enjoined the Mickails from interfering with the proper use of that easement. The decree was affirmed by the court en banc, and the Mickails have now appealed to this Court.

For one to acquire an easement by adverse use, the exercise of possession must be adverse, notorious and continuous for at least twenty-one years. Act of March 26, 1785, 2 Sm. L. 299, § 2, 12 P.S. § 72; Wampler v. Shenk, 404 Pa. 395, 172 A.2d 313 (1961). The appellants admit that the pathway in question has been used continuously and notoriously for well over twenty-one years. However, they claim that such use was "permissive" rather than "adverse" up until July 23, 1945. Thus, it is argued, the adverse use was for only fourteen years, and no prescriptive right could, therefore, have been acquired.

The only support for the appellants' position is in the testimony of Anna Fec, who was seventy years old at the time of trial, that she and her husband had used the pathway because they had been told by their ...


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