Appeal from the Order of the Court of Common Pleas of Lycoming County in case of Louise V. Heller et al. v. Borough of South Williamsport, No. 74-1324.
Clifford A. Rieders, with him Stuart, Murphy, Smith, Mussina, Harris & Rieders, for appellants.
Robert C. Wise, for appellee.
Judges Wilkinson, Jr., Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 47 Pa. Commw. Page 643]
In this equity action, instituted in the Lycoming County Court of Common Pleas, appellants (plaintiffs) sought to enjoin the Borough of South Williamsport (Borough) from opening a section of Curtin Street over land which plaintiffs' property abuts. Following trial on the merits, the common pleas court granted the requested relief with respect to some of the land involved but in other respects denied the relief plaintiffs sought. We affirm.
The facts necessary for the disposition of this appeal are undisputed by virtue of an Agreed Statement of Record filed by the parties on February 1, 1978. Curtin Street is an existing north-south Borough Street; the dispute here concerns the construction of that part of Curtin Street between Sixth and Seventh Avenues.
[ 47 Pa. Commw. Page 644]
The proposed link involves the use of two separate parcels of land. The first of the two parcels, a strip of land approximately 25 feet in width, has been historically known as Dangle Avenue.*fn1 Apparently laid out as a part of the "Edgewood Addition" to the Borough, at least as early as 1898, the chancellor rejected the Borough's argument that this land constituted a public way by virtue of historical user. The chancellor found instead that since the public had not made use of Dangle Avenue the "adjoining owners would appear to be owners of this strip of land, to the center line thereof, subject to any public or private easement rights thereover."*fn2 The second parcel of land, lying immediately to the west of Dangle Avenue, was purchased by the Borough in 1956 from American Legion Post No. 617.
The equity court ordered and decreed that the Borough be enjoined from proceeding with construction on the eastern half of the strip of land identified as Dangle Avenue, but as to the westerly portion of Dangle Avenue and the American Legion purchase the Borough could proceed as planned since it was owner of the land.
On May 5, 1927, the section of Curtin Street now in controversy was laid out and accepted by the Borough. Plaintiffs argue that the Borough is now precluded from going forward with its plans because there was no public use of the street for 21 years following its acceptance. In support of their position plaintiffs
[ 47 Pa. Commw. Page 645]
point to Section 1724 of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46724 which provided the following: "Whenever any street shall have been laid out and shall not have been opened to, or used by the public for a period of twenty-one years, such street shall not thereafter ...