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STOZENSKI ET AL. v. BOROUGH FORTY FORT. STOZENSKI ET AL. (03/25/74)

decided: March 25, 1974.

STOZENSKI ET AL., APPELLANTS,
v.
BOROUGH OF FORTY FORT. STOZENSKI ET AL., V. BOROUGH OF FORTY FORT, APPELLANT



Appeals from decree of Court of Common Pleas of Luzerne County, Oct. T., 1970, No. 3, in re John A. Stozenski and Mary Stozenski, his wife; Michael Yurko and Mary Yurko, his sister v. Borough of Forty Fort, Luzerne County, Pennsylvania.

COUNSEL

Arthur L. Piccone, for defendant, appellant.

Joseph B. Farrell, with him Francis P. Burns, for plaintiffs, appellants.

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

Author: Manderino

[ 456 Pa. Page 6]

The parties in this appeal own separate properties in the Borough of Forty Fort, Luzerne County, Pennsylvania. One property is owned by John A. Stozenski and Mary Stozenski, husband and wife. A second property is owned by Michael Yurko and Mary Yurko, brother and sister. The Stozenski property and the Yurko property are separated by a private road. The

[ 456 Pa. Page 7]

    private road begins at Wyoming Avenue and runs between the Stozenski property and the Yurko property. The road provides access to a third property which is owned by the Borough of Forty Fort. The parties agree that each property owner is entitled to the use of the private road which was established as an easement when the properties were part of a single larger tract. The parties also agree that the road easement, as originally recorded, was twenty feet in width. They disagree, however, as to the present width of the road easement and as to the extent of the permitted use of the easement by the Borough of Forty Fort.

The Stozenskis and the Yurkos were plaintiffs in an equity action in which the Borough of Forty Fort was the defendant. Both plaintiffs and defendant now appeal from the trial court's final decree.

The trial court concluded that (1) the defendant was entitled to the use of the original easement which was twenty feet in width; and (2) the defendant's rights to use the easement were limited. Plaintiffs have appealed from the first part of the trial court's decree and the defendant has appealed from the second part of the decree. We affirm the first part of the trial court's decree and modify the second part of that decree.

The plaintiffs contend that the trial court erred in concluding that the "plaintiffs did not acquire by adverse possession rights sufficient to extinguish any portion of the easement." We do not agree. The trial court found that the Stozenskis had maintained grass on a two foot wide portion on the alley which parallels their property and used the strip as part of their side yard. The trial court also found that the Yurkos maintained grass on an eight foot strip of the alley which parallels their property. At the edge of the eight foot wide strip, running through the middle of the road

[ 456 Pa. Page 8]

    easement, someone had erected a low concrete curb before the Yurkos had acquired their property in 1951. Plaintiffs argue that their maintenance of grass and the existence of the concrete curbing for more than twenty-one years were sufficient facts from which the ...


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