decided as amended december 30 1970.: December 29, 1970.
Ganey, Van Dusen and Aldisert, Circuit Judges.
VAN DUSEN, Circuit Judge.
The primary question presented by this appeal is whether an easement can be acquired by prescription in and above a sidewalk, title to which is in private hands subject to an easement of passage in favor of the public, by regular use of such sidewalk to maintain a marquee in front of an abutting building and to change the signs on such marquee.
Alleging that the construction of a proposed building on property formerly constituting a public sidewalk would interfere with an easement in its favor, RKO-Stanley Warner Theatres, Inc. (RKO) brought this suit against the Mellon National Bank and Trust Company (Mellon Bank), the City of Pittsburgh, and the Urban Redevelopment Authority of the City of Pittsburgh. The complaint sought to enjoin the City of Pittsburgh from vacating the public sidewalk and from issuing a building permit for the construction of a new building over the sidewalk, and further sought to enjoin Mellon Bank from constructing a building over the land formerly constituting the sidewalk.*fn1 The City of Pittsburgh and the Urban Redevelopment Authority of the City of Pittsburgh moved pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief could be granted, and Mellon Bank filed an answer and moved pursuant to Rule 12(c) for judgment on the pleadings. The district court granted all three motions.*fn2 Since this is an appeal from the dismissal of the complaint as to all defendants, the allegations of the complaint must be taken as true.*fn3
The complaint charges that the plaintiff, RKO, owns and operates a motion picture theatre in Pittsburgh, Pennsylvania. The theatre building, with a marquee extending over the sidewalk in front of it, was erected in 1912. One of the defendants, Mellon Bank, owned and operated a bank adjacent to the theatre from 1935 until 1968. Prior to demolition of Mellon Bank's building in 1968, the theatre and the bank building existed on a common building line. Paragraph 6 of the complaint alleges:
From the time the said theater and marquee were erected and the time when said bank building was erected the Plaintiff, and the predecessor operators of said theater, have used the sidewalk in front of said bank building and the air space above the same for the maintenance of and the changing of signs on, the said marquee; the use of said sidewalk and said air space has been uninterrupted, continuous and adverse for a period in excess of twenty-one (21) years.*fn4
In May 1969 the defendant City of Pittsburgh vacated the sidewalk in front of the bank building.*fn5 Vacation of the sidewalk relieved Mellon Bank of an easement in favor of the public and gave Mellon Bank a fee simple title, free of all encumbrances, to the 10-foot wide strip of land that formerly constituted the public sidewalk. In August 1969 RKO learned that Mellon Bank planned to construct a new building on its property that would extend over this 10-foot wide strip, and that the City of Pittsburgh would issue a building permit for the building as planned. Construction of a building over the 10-foot wide strip that formerly constituted the public sidewalk would physically block one side of RKO's marquee from public view and would prevent RKO from maintaining its marquee and changing the signs thereon.
THE DISMISSAL AS TO MELLON NATIONAL BANK AND TRUST COMPANY
We must decide whether these allegations, taken as true, would establish an easement in favor of RKO to maintain its marquee and change the signs thereon.*fn6 RKO does not claim an easement to light and air, but rather an easement to go upon the sidewalk in front of Mellon Bank and erect ladders in order to maintain its marquee and change the signs thereon.*fn7 Further, RKO does not claim an easement against the City of Pittsburgh, but rather against the abutting fee owner Mellon Bank.*fn8 Cases holding that rights against a city or the public cannot be gained by prescription therefore have no application to the claim against Mellon Bank.*fn9
The basic question is whether easements can be acquired by prescription in property constituting a public sidewalk, which is "for all intents and purposes a part of the [abutting] owner's premises subject only to the public's easement of passage."*fn10 Easements by prescription are created by adverse, open, notorious, continuous, and uninterrupted use of land for 21 years.*fn11 The factual allegations of the complaint and the reasonable inferences that may be drawn therefrom could, if proven, establish that RKO's use of the sidewalk in front of Mellon Bank's building was open and notorious.*fn12 The complaint also alleges that RKO's use of the sidewalk was continuous*fn13 and uninterrupted*fn14 for a period in excess of the prescriptive period, and that RKO's use was at all times adverse to Mellon Bank.*fn15 The complaint thus alleges that all of the requirements necessary to establish a prescriptive easement are present. The difficulty posed by this case is the presence of the public easement. Any use of the sidewalk within the scope of the public easement is not adverse to Mellon Bank and cannot serve as the basis for the acquisition of a prescriptive easement.*fn16
The Pennsylvania courts have not precisely defined the scope of the public easement in sidewalks. The early Pennsylvania decisions characterized the easement as an "easement of passage,"*fn17 but added that the public's right of passage comprehended "the powers incident to such a right."*fn18 The powers incident to the right of passage include the right to obstruct temporarily the public way for business necessity, accidents, or the ordinary exigencies of travel.*fn19 There is some support in the Pennsylvania decisions for the proposition that the right to obstruct temporarily is merely incidental to the right of passage, and belongs only to members of the public engaged in traveling over the public way.*fn20 Other Pennsylvania decisions indicate that the right to obstruct temporarily belongs to members of the public whose reasonable commercial needs require such temporary obstruction,*fn21 and the authorities are generally in agreement with this interpretation.*fn22 But the scope of the public easement is not broad enough to allow constantly recurring, although temporary, obstructions to the public way. While the abutting fee owner may have power to impose frequent temporary obstructions on the public way in order to serve his own reasonable commercial needs,*fn23 the Pennsylvania decisions clearly establish that an abutting fee owner may not obstruct the public sidewalk owned by another abutting fee owner on a recurring basis in order to serve commercial needs.*fn24 Such use of the public sidewalk would amount to an appropriation of another's property for private commercial purposes.*fn25
Recent Pennsylvania decisions have expanded the scope of the public easement, holding that the rights of the public are regarded as being in the exclusive possession of the municipality, which may authorize the use of any public sidewalk for any public purpose.*fn26 But in order to fall within this expanded scope of the public easement, a use must be specifically authorized by the municipality; ...