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SAMUEL H. BURGER AND LORAINE BURGER v. ROCKHILL BUILDERS (06/13/80)

filed: June 13, 1980.

SAMUEL H. BURGER AND LORAINE BURGER, HIS WIFE, AND WILLIAM C. MCMENAMIN AND DOROTHY M. MCMENAMIN, HIS WIFE, APPELLANTS,
v.
ROCKHILL BUILDERS, INC., DAVID E. KNIPE AND SON, INC., JUDE CONSTRUCTION, GILBERT ASSOCIATES, INC., TRI-STATE ENGINEERS AND LAND SURVEYORS, INC., JOHN MCGOWAN AND JAMES KEENAN T/A MCGOWAN AND KEENAN, AND NORTHAMPTON MUNICIPAL AUTHORITY



No. 57 October Term, 1979, Appeal from the Order in the Court of Common Pleas of Bucks County, No. 77-8794-08-5. Civil Action, Equity.

COUNSEL

Peter A. Glascott, Doylestown, for appellants.

Gene E. K. Pratter, Philadelphia, for appellees.

Price, Gates and Dowling, JJ.*fn*

Author: Price

[ 278 Pa. Super. Page 432]

Appellants have appealed from an order by the chancellor sustaining appellees' demurrers to their amended complaint in equity. Finding no error, we affirm.

Appellants are property owners in a subdivision known as Ironworks Creek Estates, Northampton Township, Bucks County. By deeds executed December 15, 1976, and March 29, 1977, appellants McMenamin and Burger acquired lots 9 and 8 respectively in Ironworks Creek Estates from the developers, appellees McGowan and Keenan. Both deeds contained the following provision describing the tracts in question:

"ALL THAT CERTAIN lot or pieces of land . . . bounded and described in accordance with Final Plan of Ironworks

[ 278 Pa. Super. Page 433]

Creek Est. made by Tri-State Engineers & Land Surveyors, Inc., dated 9/22/1975, last revised 3/16/1975, . . . ."

The final plan referred to in the deeds, was recorded on September 22, 1975, and showed a subdivision of nine tracts of land. The northernmost portion of lots 1 through 7 contained a "sanitary sewer easement" thirty feet wide. This connects to what is labeled a "proposed easement" of the same width which extended through a portion of lot 7 and through the entire portion of appellants' lots 8 and 9. An additional recitation on the plan is labeled "temporary working easement" of a width of ten feet and is located adjacent to the "proposed easement."

During the summer of 1977, appellee Jude Construction Company, against the protest of appellants, began excavation for sewer lines on appellants' lots within the thirty-foot area marked "proposed easement." On September 13, 1977, appellants filed a praecipe for a writ of summons. After completion of discovery, a complaint was filed in equity on February 28, 1978, requesting the removal of the sewer line or, in the alternative, recovery for the damage caused by Jude Construction and the other contractors, sub-contractors, engineering firms and the municipal authority involved in the installation and construction of the sewer lines. Appellants' theory in support of their complaint was that the designation on the final plan of Ironworks Creek Estates of a "proposed easement" was insufficient to create an easement authorizing appellees to install the sewer line on their property. Appellees filed preliminary objections demurring to the complaint which were sustained by the trial court.

In resolving this dispute, we find that appellants' disclaimer as to the creation of easements by reference to a map or plot, see Vinso v. Mingo, 162 Pa. Super. 285, 57 A.2d 583 (1948), is misplaced, for the reason that this principle is applicable only to easements for private purposes. See 3 Powell on Real Property para. 409 n. 7 (1979). ...


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