No. 49 May Term 1978, Appeal from the Order of the Superior Court at No. 359 March Term 1977 affirming the decree of the Court of Common Pleas of York County at Equity Docket No. 11, August Term 1974.
Kenneth A. Wise, York, Alan Linder, Lancaster, for appellants.
Jeffrey C. Bortner, York, for appellees.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ.
On June 25, 1974, appellant, Charles E. Lease, and his son ("the Leases") filed a complaint in equity seeking to enjoin John H. Doll, Sr. and Florence H. Doll ("the Dolls") from preventing access by motor vehicle to the landlocked property of the Leases by way of a right of way running over the land of the Dolls. On July 16, 1974, the Dolls filed an answer and counterclaim.*fn1 The answer to the complaint
contended the right of way was a footpath of a width of not more than three feet and, therefore, not of sufficient width to accommodate motor vehicle use. Following the denial of preliminary motions, the chancellor conducted an evidentiary hearing and subsequently issued an adjudication and decree nisi. This decree nisi, dated July 3, 1975, was favorable to the Leases. The Dolls petitioned for a rehearing, and the chancellor opened the first decree nisi and conducted a second evidentiary hearing. On February 13, 1976, the chancellor issued a second adjudication and decree nisi which declared the right of way "to be of sufficient width to provide for reasonable and convenient travel by foot, but not of sufficient width to provide for access by motor vehicle."
Subsequently, the Leases, with the court's permission, deposed an additional witness and submitted the transcribed notes of testimony of the deposition to the court. After considering these notes of testimony, the chancellor reaffirmed the second decree nisi. Exceptions to this decree nisi were filed and argued before the court en banc. The court en banc dismissed the exceptions and adopted the second decree nisi as a final decree. An appeal was taken to the Superior Court which affirmed the final decree. Lease v. Doll, 256 Pa. Super. 226, 389 A.2d 1096 (1978) (dissenting opinion by Spaeth, J., joined by Van der Voort, J.). We granted a petition for allowance of appeal.
The relevant facts as found by the chancellor and supported by the record are as follows:
The Leases are joint owners of approximately .7 acres of land in the village of Glennville, Manheim Township, York County. A frame dwelling stands on the property. The Dolls jointly own land contiguous to the Leases' property which separates the same from an improved public road. The sole means of access to the Leases' land is a right of way running over the Dolls' property.
In 1952, the common owner of both the Leases' land and the Dolls' land conveyed the Leases' land to one of the Leases' predecessors in title and reserved the land now owned ...