No. 59 March Term, 1977, Appeal from the Order of the Commonwealth Court, 55-CD-1976, Affirming and Modifying the Order of the Court of Common Pleas, Blair County, at Civil Action No. 328, October Term, 1974.
John M. Elliott, Constance B. Foster, John F. Stoviak, Dilworth, Paxson, Kalish & Levy, Philadelphia, N. John Casanave, Altoona, for appellant.
Beth B. Croyle, Goodman, Notopoulos & Silverman, Altoona, for Baird and Goodman.
Paul S. Foreman, Altoona, James S. Routch, Patterson, Evey, Routch, Black & Behrens, Hollidaysburg, for William T. Howe, Betty L. Howe, Janet Martin Schreiber, Thomas O. Martin and Dorothy V. Martin.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, former J., did not participate in the decision of this case. Roberts, J., filed a dissenting opinion in which Nix, J., joins.
We are called upon to decide whether or not a municipality which has acquired a street by dedication may, when later it vacates the street, reserve to itself an easement for utility lines within the boundaries of the vacated street. We agree with the Commonwealth Court*fn1 that on the facts of this case, the question must be answered in the negative.
The record discloses that in 1951 Martin Goodman purchased a tract of land located in the City of Altoona and some six years later submitted to the City Planning Commission a proposed subdivision of the property. Included in the subdivision plan was a short street known as Kenyon Road which provided access into the subdivision area. While the proposed plan was under consideration by the Commission, a sanitary sewer was constructed along the right-of-way of Kenyon Road pursuant to an agreement entered into between Goodman and the City. Thereafter, the plan was
approved and filed by the Planning Commission and accepted by the City.*fn2
The present controversy began in December of 1974, when, in response to a petition of citizens who owned land abutting on Kenyon Road, the City of Altoona passed Ordinance 4354*f ...