Appeal from decree of Court of Common Pleas of Indiana County, Dec. T., 1970, No. 2, in case of Trimble Services, Inc. v. Franchise Realty Interstate Corporation, Evergreen Motors, Inc., and Evergreen Estates, Inc.
Robert S. Glass, for appellant.
Louis F. Silhol and Alan Holsinger, with them Holsinger & Clark, for appellees.
Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
We are presented with the question of whether appellant's bill in equity was the proper form of action. We affirm the Chancellor's determination that an action at law was the proper form of action for appellant, but we modify the decree of dismissal so as to provide for the transfer of the matter to the law side as required by Rule 1509(c) of the Pennsylvania Rules of Civil Procedure.
This controversy comes to us from the sustaining of appellees' preliminary objections and the dismissal of the complaint. It is settled that in an appeal from the upholding of preliminary objections by a defendant in the nature of a demurrer, every well pleaded material fact set forth in the complaint and every inference reasonably deducible therefrom is admitted for purposes of appeal. Mellon Square Garage, Inc. v. Public Parking Authority of Pittsburgh, 442 Pa. 229, 275 A.2d 654 (1971); Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); DiBelardino v. Lemmon Pharmacal Co., 416 Pa. 580, 208 A.2d 283 (1965); Weber v. Bell Tel. Co. of Pa., 415 Pa. 292, 203 A.2d 554 (1964). The following pertinent "facts" can be inferred from the complaint. For ease of reference, we will set out a schematic diagram of the land and easement in question. The sketch is meant to serve only as a descriptive aid; it is not drawn to scale, nor is it meant to represent the precise relative location of the plots of land.
At one time the McCreary family owned most of the land surrounding the disputed easement. On April 18, 1966, the McCreary heirs conveyed approximately 2.147 acres of land (tract C) to the McCreary Tire and Rubber Co. In the same deed, the heirs conveyed the use of a right-of-way (tract E) to the Tire and Rubber Co. in the following language: "There is Further Granted and Conveyed by the operation of this deed unto grantee, its successors and assigns, the full, free, liberty and right at all times hereafter, forever, to have and use a right-of-way 50 feet wide extending from Pennsylvania Highway Traffic Route No. 286 along line of Richard J. Rezzola and along private road presently in existence, in a Northerly direction to the Western line of Tract No. 2 [tract C] above described, for any and all purposes jointly with grantors, their heirs and assigns, connected with the use and occupation of Second Tract above described, and the larger tract of land of which Tract No. 2 was a part owned by grantors herein,
said right-of-way being more specifically hereinafter described as follows: . . ."
Subsequently, on November 1, 1968, appellant Trimble Services, Inc., purchased tract D, which consists of approximately 20 acres, from the McCreary heirs. The easement was described in the applicable deed as follows: "Grantee, its successors and assigns, shall have the right to the use of the 50-foot right-of-way on the East side of the above described tract as it extends from Traffic Route No. 286 to land of McCreary Tire & Rubber Company, said use to be joint between grantee, its successors and assigns, and McCreary Tire & Rubber Company, its successors and assigns, with joint maintenance and upkeep between the users thereof."
A series of transactions concerning the easement then commenced which appellant seeks to set aside.*fn* On April 9, 1970, the McCreary Tire and Rubber Company entered into an "agreement" with Evergreen Motors, Inc., (the then owners of tract B) purporting to convey to the latter: ". . . and to their successors and assigns the full free liberty and right at all times hereafter, whatever to have and use the Right of Way fifty (50) feet in width, extending from Pennsylvania Highway Traffic Route 286 along line of lands of the Grantee ...