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JUSTIN J. POWELL v. WIAN. APPEAL HUMBLE OIL & REFINING COMPANY (03/25/74)

decided: March 25, 1974.

JUSTIN J. POWELL, INC., APPELLANT,
v.
WIAN. APPEAL OF HUMBLE OIL & REFINING COMPANY



Appeals from decree of Court of Common Pleas of Centre County, April T., 1971, No. 1, in case of Justin J. Powell, Inc. v. Alice B. Wian, executrix of the estate of Willard F. Wian, and as an individual, and Humble Oil & Refining Company.

COUNSEL

John H. Morgan, with him David E. Tungate, John R. Miller, Eckert, Seamans, Cherin & Mellott, and Miller, Kistler & Campbell, for Humble Oil & Refining Company, appellant in No. 73, and appellee in No. 76.

Carl A. Belin, Jr., with him Belin & Belin, for Justin J. Powell, Inc., appellant in No. 76, and appellee in No. 73.

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

Author: Eagen

[ 456 Pa. Page 36]

This is an action in equity instituted by Justin J. Powell, Inc. [Powell], against Alice B. Wian, executrix of the estate of Willard F. Wian, deceased, and Alice B. Wian, an individual, as well as against the Humble Oil and Refining Company [Humble]. Pretrial, the parties agreed to eliminate the estate of Willard F. Wian and Alice B. Wian as parties-defendant, and the action proceeded to trial as Powell v. Humble. After an extended evidentiary hearing, the chancellor entered an adjudication and decree nisi to which both parties filed exceptions. Subsequently, these exceptions were dismissed, and a final decree was entered. Humble filed an appeal [No. 73], and Powell filed an appeal [No. 76]. The appeals were consolidated for argument and will be disposed of in this opinion.

The facts giving rise to the litigation are these.

In 1967, Willard F. Wian and his wife, Alice B. Wian, jointly owned certain undeveloped property in Spring Township, Centre County, which was bisected by Legislative Route 14028. An exit ramp from the Bellefonte interchange on Interstate 80 entered the Wian land and formed a "T" intersection with Legislative Route 14028 approximately in the center of the Wian land. Legislative Route 14028 as it pertains to this intersection was designated by the Pennsylvania Department of Transportation as a "limited access highway."

[ 456 Pa. Page 37]

On January 12, 1967, the Wians conveyed title of a portion of their property to the Sun Oil Company [Sun]. The land so sold to Sun was located to the west of the "T" intersection, described before, and was bounded on the north by Jacksonville Road which ran through the Bellefonte interchange. The deed to Sun included a restrictive covenant in favor of the grantee prohibiting, inter alia, the erection of any building, signs, structures or obstructions within 50 feet of the southerly line of the Jacksonville Road right-of-way for a distance of 750 feet to the east.

On May 15, 1967, the Wians executed an option granting American Oil Company [American] the right to purchase a 200 foot square piece of land which they still owned.*fn1 This land was situated to the east of the land previously conveyed to Sun.

Subsequently, American engaged R. J. Reese & Associates [Reese] to prepare a survey of the land subject to its option. When the survey was prepared, it disclosed that the westerly boundary line of the land described in the option was 710 feet from the easterly boundary line of the land conveyed to Sun and the westerly boundary line of the optioned property was 60 feet from the easterly end of the established limited access highway. On the survey, this 60 foot intervening space was designated as a right-of-way for W. F. Wian. Upon learning the land, described in American's option, was located 710 feet from the Sun land, Alice B. Wian [Willard F. Wian had died in the meantime] agreed that the land to be conveyed to American would have to be moved 40 feet to the east in order ...


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