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ANTHONY J. MELLACE v. JAMES H. ARMSTRONG AND LOUISA V. ARMSTRONG (11/24/76)

decided: November 24, 1976.

ANTHONY J. MELLACE, A/K/A ANTONIO MELLACE AND PALMA S. MELLACE, HIS WIFE, APPELLEES,
v.
JAMES H. ARMSTRONG AND LOUISA V. ARMSTRONG, HIS WIFE, APPELLANTS



COUNSEL

Basil C. Clare, Ridley Park, for appellants.

A. Sidney Johnson, Jr., Kenneth A. Clouse, Media, for appellees.

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

Author: Manderino

[ 469 Pa. Page 327]

OPINION OF THE COURT

In January of 1972, appellants, James H. Armstrong and Louisa V. Armstrong erected a fence gate across an

[ 469 Pa. Page 328]

    alley located between appellants' property and the property of appellees, Anthony J. Mellace and Palma S. Mellace. Appellees then brought an action in equity to compel the removal of the fence which according to the appellees, obstructed their right of way to use the alley. Appellants answered and filed a counterclaim alleging that they had acquired title to the alley by adverse possession. The trial court held in favor of appellees. This appeal followed.

Both the property of the appellants and that of the appellees abut the alley in question. Appellees acquired their property by two deeds dated 1943 and 1944. By these deeds, appellees were granted free and unobstructed use of a twelve foot wide alley in common with other abutting owners. Appellants acquired their property in 1959. This property had been in appellant's family for a number of years as a result of two deeds dated 1929 and 1943. In 1920 appellant's predecessor in title began cutting the grass and pulling the weeds growing in the alley. In 1937, the predecessor planted an iris garden which extended across the alley and was contained by a one foot high wall. In 1942, the appellants' predecessor planted a "victory garden" in the alley, and a year or two later constructed a white picket fence across the alley. In 1958, the appellants planted several hemlock and other evergreen trees on the same path as the picket fence, and in 1962 they removed the fence which had by then been in existence for eighteen years and nine months. Appellants do not dispute that the appellees obtained an easement by the 1943 and 1944 deeds, nor do they dispute that the appellees used the easement. They contend, however, that even though they did not prevent passage and did not completely block the use of the alley, their activities extinguished the easement. We do not agree.

The trial court concluded that although the appellants had "exercised indicia [of] ownership," over the alley,

[ 469 Pa. Page 329]

    the events which took place "were not in derogation" of the appellees' "easement rights of passage." The trial court found that there was "nothing in the testimony presented to indicate that that alley was so obstructed as to preclude plaintiffs' passage." It is not clear from the trial court's opinion whether the alley was unobstructed at all relevant times, or whether the alley was obstructed for the period of eighteen years and nine months when the white picket fence was in existence. This issue was disputed at trial. Appellants claimed that the alley was not used as a passageway and could not have been used when the white picket fence existed because the gate was always locked. Appellees on the other hand presented evidence that the gate was never locked and that the alley was used at all times by passage through the gate. The trial court did not specifically resolve this conflict in the evidence; however, it is undisputed that the white picket fence existed for less than twenty-one years, and the trial court found that the alley was unobstructed at all other times. The record shows that the alley was then used regularly by the appellees to reach certain stores and other places of interest, and that other abutting property owners also used the alley regularly. A borough engineer also testified that in 1964, when work was being done in the area, he walked freely through the area of the alleyway and that it was unobstructed at that time.

The trial court thus concluded that the appellants had failed to sustain their burden of proof that they or their predecessors in title had adversely possessed the alley for twenty-one years in such a way as to obstruct appellees' ...


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