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NORMAN J. ROTH AND EMMA K. ROTH v. ROBERT H. HALBERSTADT AND MARY M. HALBERSTADT (10/20/78)

decided: October 20, 1978.

NORMAN J. ROTH AND EMMA K. ROTH, HIS WIFE, APPELLANTS,
v.
ROBERT H. HALBERSTADT AND MARY M. HALBERSTADT, HIS WIFE



No. 575 October Term, 1977, Appeal from the Decree entered November 22, 1976, by the Court of Common Pleas, Equity, of Northampton County at No. 22 October Term, 1974.

COUNSEL

Gary Neil Asteak, Easton, for appellants.

Dominic J. Ferraro, Nazareth, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 258 Pa. Super. Page 404]

The parties to this proceeding are adjoining landowners, and this appeal is from a final decree in equity. The action was commenced when the Roths filed a complaint in equity alleging that the Halberstadts constructed a fence that encroached on the Roths' property. The Halberstadts contended in their answer that the fence was located entirely on their property. After a hearing, the lower court dismissed the complaint, concluding that the Roths had failed to sustain their burden of proving the location of the common boundary. We affirm the lower court's disposition.

The properties involved lie in a general north-south direction with the center line of South Summit Road as the easterly boundary. The Roth property lies to the south and is roughly trapezoidal in shape with the base running approximately 760 feet along South Summit Road. The Halberstadt property is shaped like a parallelogram and fronts approximately 400 feet on South Summit Road.

The common line is described in the Roths' deed as follows: "thence along the land of the Grantor, of which this was a part, North seventy-two degrees twenty-eight minutes East (N 72 degrees 28' E) four hundred twelve and seventy-one one-hundredths (412.71') feet passing in a spring to a bolt in the center of Township Road No. 592 . . . ." (Plaintiffs' exhibit 4; P.R. 149a) (emphasis added). The habendum clause provides in part: " TOGETHER with the right at all times to use the waters of the Spring located on the northeast portion of the land hereby granted, in common with the owners of the property immediately adjoining to

[ 258 Pa. Super. Page 405]

    the north and the successors thereto." (Plaintiffs' exhibit 4; P.R. 149a).*fn1

At the hearing, the Roths introduced a survey prepared by Kenneth R. Hahn after this dispute arose. The survey shows three bodies of water in proximity to the common boundary. Beginning at the westerly property line, the first water course is Monocacy Creek which flows in a southerly direction and intersects the common boundary. It is clear that this creek is not the spring referred to in the deed because it is located in the western half of the property. Neither party contended that this was the spring in question. The second body of water, called a "surface spring," is located, according to the survey, approximately 120 feet west of South Summit Road. This "spring" is a wide shallow pool of slowly moving water which flows into a drainage ditch. The drainage ditch runs in a westerly direction from the southern tip of the surface spring to Monocacy Creek. The third body of water is a spring which surfaces at what is termed a stone headwall. The water from this spring flows in a south westerly direction into a large pond in the center of the Roth property.

According to the plaintiffs' survey, the common boundary intersects the surface spring at the southern tip of the pool where the water flows into the drainage ditch. The drainage ditch runs parallel to, and approximately seven feet south of, the boundary. The stone headwall lies approximately seven feet south of the common boundary and approximately forty feet west of the center line of South Summit Road. The fence in question is approximately sixty feet long. It begins at the side of South Summit Road at a point allegedly on the Roths' property five feet south of the boundary. The ...


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