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HANKIN v. HARBISON ET AL. (06/28/71)

decided: June 28, 1971.

HANKIN
v.
HARBISON ET AL., APPELLANTS



Appeal from order of Court of Common Pleas of Montgomery County, No. 65-4602, in case of Moe Henry Hankin et ux. v. Thomas B. Harbison et al.

COUNSEL

Peter F. Baughman, with him Waters, Fleer, Cooper & Gallager, for appellants.

Desmond J. McTighe, with him Philip D. Weiss, and McTighe, Koch, Brown & Weiss, for appellees.

Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: O'brien

[ 443 Pa. Page 197]

On January 28, 1937, William M. Greenhouse, the recent purchaser of a twenty-acre tract from the Merritt Estate in Abington Township, wrote to township officials seeking permission to construct two houses on lots on a proposed Merritt Road, which would have a width of twenty-four feet and a length corresponding with the frontage of the two lots.

On May 6, 1937, the road, having been constructed sometime prior thereto, was inspected by Abington Township. Since then a home has been built on each of the two lots on Merritt Road. The appellees, Moe Henry Hankin and his wife, purchased one of the improved lots on February 18, 1943.

On April 20, 1965, appellees filed a pleading entitled "Petition for Preliminary Injunction" against appellants, Harbison and Longsdorf, alleging that Merritt Road is a private road of which they are equitable owners; that Harbison, who conducts an automobile agency on the opposite side of Merritt Road, has engaged Longsdorf to pave a portion of the property; that Longsdorf has knocked down one large shade tree and intended to knock down fifteen additional trees, all of which trees are within the right of way of Merritt Road; that the

[ 443 Pa. Page 198]

    plaintiffs (appellees) would be irreparably harmed if defendants (appellants) removed the trees, and that they had no adequate remedy at law.

After several proceedings, which need not concern us here, including the subsequent filing of a complaint, the court determined that the case involved the resolution of title to land, and the entire proceeding was certified to the law side to determine: 1. ownership of the fee in Merritt Road, and 2. public and private rights or easements in Merritt Road.

After a trial without jury, the court rendered an adjudication in which it held that although there had been an implied dedication of Merritt Road to the public, the Township had never accepted the dedication. Consequently, appellees had equitable ownership and were entitled to relief. Appellants filed exceptions, which were dismissed by the court en banc without an opinion. On appeal from the order of the Court of Common Pleas, we vacated the order and ordered a rehearing with instructions that Abington Township be joined as a party defendant. Hankin v. Harbison, 437 Pa. 569, 259 A.2d 171 (1970). Another hearing was scheduled pursuant to our order. However, in lieu of a new hearing, counsel for all the parties, including the Township, entered into a stipulation that no party would introduce further testimony. A supplemental adjudication was filed, after which the court republished and reinstated its earlier adjudication and order as a final judgment of the court.

Since the court below found as a fact and concluded as a matter of law that there was an implied offer of dedication of Merritt Road, and no exceptions were filed to such finding and conclusion, the only issue before us on appeal is whether the Township of Abington has accepted the ...


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