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ARTHUR J. ELLIOTT v. H. B. ALEXANDER & SON (03/09/79)

decided: March 9, 1979.

ARTHUR J. ELLIOTT, APPELLANT
v.
H. B. ALEXANDER & SON, INC., CITY OF LEBANON, SENCIT-LEBANON COMPANY, APPELLEES



Appeal from the Order of the Court of Common Pleas of Lebanon County in case of Arthur J. Elliott v. H. B. Alexander & Son, Inc., City of Lebanon and Sencit-Lebanon Company, No. 37 of 1976.

COUNSEL

Robert C. Rowe, with him Robert Sullivan, Jr. and Sullivan and Sullivan, for appellant.

Donn L. Snyder, with him Berman, Boswell, Snyder & Tintner, for appellee, H. B. Alexander & Son, Inc.

James T. Reilly, with him Egli, Reilly, Wolfson and Feeman, for appellee, Sencit-Lebanon Company.

Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 41 Pa. Commw. Page 185]

Arthur J. Elliott has appealed from an order of the Court of Common Pleas of Lebanon County denying his request for an injunction to restrain the City of Lebanon (City), H. B. Alexander & Son, Inc. (Alexander), and the Sencit-Lebanon Company (Sencit-Lebanon) from trespassing on his property.

In 1917, a parcel of land located in what was then the Lebanon Independent Borough was laid out in lots on a plan known as the "Forneydale Plan." Several

[ 41 Pa. Commw. Page 186]

    streets were designated on this plan, one of which was Decatur Street, the subject of this controversy. Lots were sold with reference to this plan, the lots being described in part by reference to the streets as boundaries.*fn1 Between 1917 and 1949, some of the streets were paved, opened, and used by the public; many, including Decatur Street, were not.

In November 1949, owners of lots in the Forneydale Plan, including Elliott's predecessor in title, joined in a petition to have the Lebanon Independent Borough annexed to the City of Lebanon. Attached to the petition was a map illustrating the Borough's "boundaries, streets and highways." Decatur Street was shown on this map as an alley running north and south, intersected by two streets and spanning three blocks.

The Borough was annexed to the City on January 1, 1951. Thereafter, some of the streets on the Forneydale Plan were opened and used, including the northern block of Decatur Street. However, the southern two blocks, comprising approximately 300 feet, remained unopened, unpaved, and unused. The southern intersecting street also remained unopened.

In the late 1960's, Elliott acquired title to all of the land abutting on both sides of the unopened portion of Decatur Street. In 1969, Elliott permitted the City, without protest, to install a storm sewer on the extreme southern 50 feet of Decatur ...


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