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ROBERT H. BRADY v. JOHN YODANZA AND ROSE M. YODANZA (08/22/79)

filed: August 22, 1979.

ROBERT H. BRADY, JR., AND BARBARA B. BRADY, HIS WIFE, APPELLANTS AT NO. 929, JAMES A. SPARK, APPELLANT AT NO. 930,
v.
JOHN YODANZA AND ROSE M. YODANZA, HIS WIFE, KENNETH R. KRUCHENSKY AND DIANNE K. KRUCHENSKY, HIS WIFE, DENNIS D. LAWRENZI, AND CAROL L. LAWRENZI, HIS WIFE, RONALD CALVIN BRAMHALL AND DARRYL L. BRAMHALL, HIS WIFE, ROBERT F. MCCORKLE AND CECELIA R. MCCORKLE, HIS WIFE, JOYCE E. HALL, A/K/A JOYCE HALL AND ROSE MARIE ADAMCIK



No. 929 April Term, 1977, No. 930, April Term, 1977, Appeal from the Order of the Court of Common Pleas of Westmoreland County, Civil Action, Equity, Nos. 771 and 772 of 1976.

COUNSEL

John N. Scales, Greensburg, for appellants.

Roland T. Keddie, Greensburg, for appellees.

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

Author: Price

[ 269 Pa. Super. Page 33]

This case presents the sole question of whether appellees have the use of a thirty-foot easement over separate pieces of land owned by appellants. The Westmoreland County Court of Common Pleas concluded that such a right existed, and consequently denied appellants' prayer for injunctive relief. We disagree and reverse that order.

The salient facts of the case are not in dispute. It is, rather, their interpretation vis-a-vis the intent of the parties and settled principles of property law that is the source of contention. Succinctly, the facts are as follows. Appellants Robert H. Brady, Jr. and James A. Spark own separate but

[ 269 Pa. Super. Page 34]

    adjoining tracts of land in Sewickly Township, Westmoreland County. Abutting appellants' property to the east is a series of tracts owned by appellees. The property of all parties to this action was originally purchased from a pair of common grantors, John A. Filapose, et ux., and John J. Novocek, et ux., both of whom continue to own property to the west of appellants. Mr. Spark's predecessor in title purchased his tract on July 20, 1967, while Mr. Brady acquired his in August of that same year. One of appellees, Ronald Bramhall, purchased his piece of real estate on August 7, 1967, with the remaining appellees coming into possession between September of 1968 and June of 1971. All parcels of ground owned by appellees front on a fifty-foot right of way which extends eastward and connects to a public thoroughfare, Lowber Road. This right of way terminates on the eastern edge of appellants' property at the junction of appellants' separate tracts. Appellees now contend that they have the use of a thirty-foot easement (fifteen feet on the land of each appellant), extending west from the terminus of the fifty-foot right of way, across appellants' land, bisected by the mutual border, and ending at another township road which eventually connects with the Realton-Suttersville Road. Acting on this belief, appellees on March 5, 1976, entered upon the easement in order to effect certain improvements. On March 9, 1976, appellants filed a complaint in equity praying that appellees be enjoined from further construction. Following an evidentiary hearing, the court below denied appellants' request on July 7, 1976, with exceptions to this order being subsequently denied by the court en banc.

Appellees do not claim that this easement arises out of necessity or by implication, but from an explicit reservation made by the common grantors and passed to appellees by operation of law. Confronted with such an argument, we are forced to examine the pertinent language in the various deeds, bearing in mind two well accepted principles: "The primary object in the interpretation of any written instrument is to ascertain and effectuate the intention of the

[ 269 Pa. Super. Page 35]

    parties." Hess et al. v. Jones, 335 Pa. 569, 572, 7 A.2d 299, 300 (1939); and "'The law is jealous of a claim to an easement, and the burden is on the party asserting such a claim to prove it clearly.'" Becker v. Rittenhouse, 297 Pa. 317, 325, 147 A. 51, 53 (1929).

Inspection of the deeds reveals first that the contested easement is mentioned only in the deeds to appellants when it is reserved by the common grantors. The ...


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