Appeal from the Order of the Court of Common Pleas of Northampton County in case of Ilona M. Horvath and Rosalie E. Horvath v. Township of Lower Saucon, a municipal corporation, No. 1 August Term, 1977.
Donald B. Corriere, with him Haber & Corriere, for appellant.
Bernard V. O'Hare, III, with him O'Hare & Heitczman, for appellee.
Judges Crumlish, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers. Judge Crumlish, Jr. concurs in the result only.
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The Township of Lower Saucon has appealed from an order of the Court of Common Pleas of Northampton
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County dismissing the Township's exceptions to a decree nisi enjoining the Township from entering upon the lands of the Misses Ilona M. and Rosalie E. Horvath to construct and maintain a roadway.
The Misses Horvath are the owners of a tract of land situated in Lower Saucon Township, on which is located just within and for most of the length of their property, a lane or roadway known as Horvath Lane. Horvath Lane has never been opened to the public by official act, but local residents have used it and the Township has performed maintenance and repair work on it for a number of years. In July 1977, Township officials told the Horvaths that the Township desired to widen the then ten foot wide cartway. In August 1977, the Horvaths filed a complaint in equity in the Court of Common Pleas seeking to enjoin the Township from further entry onto Horvath Lane. The Township responded that Horvath Lane had become a public road by prescription because of uniform, adverse and continuous use by the public under a claim of right for twenty-one years (Coward v. Llewellyn, 209 Pa. 582, 58 A. 1066 (1904)) or, alternatively, by operation of Section 1105 of The Second Class Township Code*fn1 which provides that every road "which has been used for public travel and maintained and kept in repair by the expenditure of township funds for a period of at least twenty-one years and upwards shall be deemed to be a public road. . . ."
After a trial without a jury, the Chancellor made the following findings of fact:
6. The roadway has not been used for public travel uniformly, adversely, and continuously for a period of twenty-one years.
7. The roadway has not been maintained and kept in repair by the expenditure of township funds for a ...