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JOSEPH P. NORD ET AL. v. DEVAULT CONTRACTING COMPANY (03/18/75)

decided: March 18, 1975.

JOSEPH P. NORD ET AL., APPELLANTS,
v.
DEVAULT CONTRACTING COMPANY, INC., ET AL. APPEAL OF GEORGE F. DILDINE ET UX.



COUNSEL

Lawrence Sager, Sager & Sager Assoc., Pottstown, for appellants.

William J. Gallagher, Ross A. Unruh, West Chester, for appellees, Alexander C. Kovach, and others; MacElree, Platt, Harvey & Gallagher, Ltd., West Chester, of counsel.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Roberts

[ 460 Pa. Page 648]

OPINION OF THE COURT

This is an action in equity to enjoin construction of a private road. The trial court concluded that no right of appellants*fn1 would be invaded by construction of the road and denied relief. This appeal ensued.*fn2 The

[ 460 Pa. Page 649]

    only issue properly presented is whether the chancellor erred in concluding that appellants possessed no easement in the land over which the road will be built.*fn3 We conclude that there was no error and therefore affirm.

Most of the facts were stipulated and, as supplemented by the unchallenged findings of the chancellor, they are as follows.*fn4

The properties of the plaintiffs and the defendant landowners were originally owned as one parcel of land by William D. Althouse. In April, 1917, he laid out a plan of lots (hereinafter called the Phoenix Heights Plan) encompassing the properties now owned by the parties to this action.

The Phoenix Heights Plan divided the tract into small lots along a proposed street (never accepted as a public street or improved as a thoroughfare) known as Mulberry Street. In 1945, a zoning ordinance was adopted requiring lot sizes larger than those provided for in the Phoenix Heights Plan. After the adoption of this ordinance and before May, 1954, defendants and their predecessors in title purchased property to the north of "Mulberry Street" by reference to the Phoenix Heights Plan. Compliance with the zoning ordinance was achieved by combining three lots (as laid out in the plan) into one.

In May, 1954, "Mulberry Street" and the land on the south side thereof were conveyed to Pennsylvania Builders, Inc. Pennsylvania Builders resubdivided the land south of "Mulberry Street" in conformity with the zoning ordinances. The new plan, known as the Pennypacker

[ 460 Pa. Page 650]

Gardens Plan, made no reference to "Mulberry Street" but rather altered the location of another proposed street (Madison Avenue) to provide access to the lots formerly fronting on the south side of "Mulberry Street."

The residences of plaintiffs all front on Madison Avenue and were purchased, with one exception*fn5 by reference to the Pennypacker Gardens Plan. While the lots in fact about the land described as "Mulberry Street" in the Phoenix Heights Plan, neither that plan nor "Mulberry Street" is mentioned in the conveyance, which describes that boundary only by courses and distances.

Prior to erecting the houses now owned by plaintiffs, Pennsylvania Builders excavated and removed soil from the entire length of "Mulberry Street," so that it could no longer be used as a right-of-way. Because most of plaintiffs' properties are substantially lower than defendants' properties, it would now be physically impossible to lay out, improve, and open "Mulberry Street" so as to supply ingress and egress to the properties of all plaintiffs and all defendants.

Defendants seek to open and lay out the property comprising "Mulberry Street" in such a manner that it would be level with their properties so as to provide them with ingress and egress. Plaintiffs apparently contend that this would violate their own claimed easement because the proposed ...


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