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PEMBERTON CRAIG MATHUES AND GAIL K. MATHUES v. PROVIDENCE FRIENDS SCHOOL (12/29/78)

decided: December 29, 1978.

PEMBERTON CRAIG MATHUES AND GAIL K. MATHUES, HIS WIFE
v.
PROVIDENCE FRIENDS SCHOOL, INC., APPELLANT



No. 1917 October Term, 1977, Appeal from an Order of the Court of Common Pleas of Delaware County, Pennsylvania, Civil Action, Equity at No. 76-1286.

COUNSEL

William T. Windsor, Jr., Philadelphia, for appellant.

Robert M. Rowlands, Havertown, for appellees.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Van der Voort, J., files a dissenting statement. Hoffman and Spaeth, JJ., did not participate in the consideration or decision of this case.

Author: Cercone

[ 262 Pa. Super. Page 185]

This is an appeal from an order of the Court of Common Pleas of Delaware County, sitting in equity, enjoining lateral use of an easement owned by appellants.

The facts are not in dispute. Plaintiffs own a parcel of land in Media, Pennsylvania, which is set back some distance from a road known as Providence Road. This property is connected to the Providence Road by a 22' wide driveway over which the defendant-school has an easement from its

[ 262 Pa. Super. Page 186]

    property located along the driveway to Providence Road. Also along this 22' driveway and across from defendant-school's property is the property of the Providence Monthly Meeting of Friends, Inc. (Providence Friends), a separate corporate entity and not a party to this action. Plaintiffs' property lies to the east of the defendant's and of Providence Friends properties and Providence Road abuts the property of the defendants and of the Providence Friends on the west side (see appendix for map). The parties trace their title through the common grantors, Ernest and Mary Chapman. In the line of title to the plaintiffs' deed there is contained the following reservation in favor of the Chapmans.

"RESERVING, however, unto the said Ernest R. Chapman and Nora L. Chapman, his wife, their heirs and assigns, the full right, liberty and privilege of said twenty-two foot wide driveway second above described, as and for a passageway and water course leading into and from Providence Road, and free ingress, egress and regress into and along the same at all times hereafter forever in common with the said Mark K. Dresden and Alice W. Dresden, his wife, their heirs and assigns, owners and tenants, so that the said Ernest R. Chapman and Nora L. Chapman, his wife, their heirs and assigns, shall at all times hereafter forever have and enjoy the free and uninterrupted right, liberty and privilege of the said twenty-two foot wide driveway as and for a passageway and water course into and from Providence Road as well as the right to lay in the bed of the said twenty-two foot driveway throughout its entire length from the Easterly side of the Providence Road to the Easterly boundary of the Borough of Media all public utilities and facilities such as water, electricity, sewer, gas and telephone that the said grantors, their heirs and assigns may deem necessary." (19a).

The tract that Chapmans kept is presently owned by defendant-school and is the site of a high school. The school

[ 262 Pa. Super. Page 187]

    has its principal offices and some of its classrooms in the meeting house owned by Providence Friends located on the opposite side of the driveway. Students and school personnel have been walking across the driveway (10' of which is paved) from the school to the meeting house and back with resultant damage to the non-paved portion of the strip. Plaintiffs concede that the students and school personnel have a right, as invitees of the school, to use the driveway, but contend that the clause creating the easement limits them to walking along the driveway to ...


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