Appeal from the Order of the Court of Common Pleas of Bucks County in case of Robert P. Topley and Barbara A. Topley, his wife, v. Buck Ridge Farm Construction Company, James D. Morrissey, Inc., Tri-State Engineers & Land Surveyors, Inc. and Township of Upper Southampton, No. 72-8098-07-5.
I. Leonard Hoffman, with him, of counsel, Ettinger, Poserina, Silverman, Dubin & Anapol, for appellants.
William B. Koch and Theodore K. Warner, Jr., with them, Koch, Phelps & Salus; John J. Kerrigan, Jr.; Stuckert, Yates & Krewson; Edwin L. Scherlis; Frank & Margolis, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.
[ 30 Pa. Commw. Page 361]
Robert P. Topley and Barbara A. Topley, his wife, own a dwelling house and lot in a residential development called Gravel Hill Farms in Upper Southampton Township, Bucks County. The eastern boundary of the Topleys' lot is the middle of a stream called Mill Creek. The southern boundary of their lot is a public road called Rydal Lane. Prior to the events giving rise to this lawsuit, Rydal Lane came to a dead-end at Mill Creek.
Buck Ridge Farm Construction Company is a land developer which owned the land across Mill Creek from the Topleys' lot. Buck Ridge filed a plan for the subdivision of its land with Upper Southampton Township proposing, inter alia, to construct a bridge to carry Rydal Lane over Mill Creek, thus providing access to its development from the roads and streets in the Gravel Hill Farms development. Buck Ridge entered into a written developer's agreement with the township to install certain improvements including "a metal plate arch type bridge over Mill Creek." Buck Ridge additionally agreed to construct all improvements necessary for the development of its lands in accordance with township specifications, to dedicate
[ 30 Pa. Commw. Page 362]
roads and streets shown on its development plans, and to execute and deliver to the township appropriate deeds of easement. The agreement provided, however, that the delivery or recording of deeds should not constitute an acceptance of any improvement as a public facility of Upper Southampton Township. Buck Ridge engaged James D. Morrissey, Inc. to construct the bridge; Buck Ridge or James D. Morrissey, Inc. engaged Tri-State Engineers and Land Surveyors to design the bridge.
The lawsuit with which we are here concerned commenced when the Topleys filed a complaint in equity naming Buck Ridge, Morrissey, Tri-State Engineers and Upper Southampton Township as defendants, and alleging that a masonry wing wall of the bridge was being placed on their property. They asked that the alleged trespass be enjoined; that the defendants be ordered to remove the encroaching structure and to restore the plaintiffs' premises to its original condition; that the plaintiffs be awarded compensatory and punitive damages; and for general relief. Each of the defendants filed answers denying a trespass based upon plans of the Gravel Hill Farms subdivision showing a hatched line about fifteen feet from and following the bank of Mill Creek on the Topleys' side, called on the plan "right-of-way for creek." This they asserted sufficiently marked the existence of an easement over the Topleys' land giving them a right to construct the wing wall of the bridge within its confines. After the pleadings were closed, all of the parties filed motions for summary judgment, some accompanied by depositions of witnesses. A judge of the court below entered an order, accompanied by a thoughtful opinion, (1) denying the plaintiffs' motion for summary judgment against the defendant township, (2) granting the township's motion for summary judgment against the plaintiffs, (3) granting plaintiffs'
[ 30 Pa. Commw. Page 363]
motion for summary judgment for compensatory damages for trespass against the defendants, Buck Ridge, Morrissey and Tri-State Engineers, such damages to be assessed in further proceedings and to be limited to damages for trespass only for the time beginning with the defendants' entry upon the plaintiffs' property and ending with the opening of the bridge for public use, and (4) denying motions for summary judgment filed by Buck Ridge, Morrissey and Tri-State. The court below found, properly on this record, that there was no easement over the plaintiffs' property created by the hatched line on the plan of Gravel Hill Farms which would provide any of the defendants with the right to construct the bridge wing wall on the plaintiffs' property; that the wing wall was in fact located on the plaintiffs' property; and that Buck Ridge, Morrissey and Tri-State were answerable in damages. The court below also properly concluded that the township had not committed an act of trespass since it had nothing to do with the location or construction of the bridge. The court below limited the liability of Buck Ridge, Morrissey and Tri-State to the time between their entry on the plaintiffs' land and the date of the opening of the bridge to public travel*fn1 because it concluded that on the latter date the township accepted the bridge as a public bridge of the township. This acceptance, the court believed, was evidenced by the fact that the ...