No. 1627 Phila. 1980, Appeal from the Final Decree of the Court of Common Pleas, Civil Action - Equity, of Monroe County at No. 569 January Term 1976.
C. Daniel Higgins, Stroudsburg, for appellants.
John J. Pentz, Jr., Stroudsburg, for appellees.
Spaeth, Brosky and Hoffman, JJ. Hoffman, J., concurs in the result.
[ 293 Pa. Super. Page 231]
This is an appeal from a final decree in equity. Appellees, Charles W. and Annelisie E. Ecenbarger, sought by their complaint an order enjoining Ross R. Lesoine, Jr., and his mother, Mildred A. Lesoine, from using a certain road, and
[ 293 Pa. Super. Page 232]
requiring them to destroy the road, restore the surface, and pay damages. In the answer to the complaint it was admitted that Ross R. Lesoine, Jr., had constructed the road where appellees alleged he had, but it was claimed that he had the authority to do so because a thirty-three foot easement existed along the entire length of the line dividing his property from appellees' property. The Chancellor entered a decree nisi dismissing the action against Mildred A. Lesoine and denying appellees' claim for monetary damages, but ordering Ross R. Lesoine, Jr., to remove the portion of the road in question and to restore appellees' property to the condition in which it had been before that portion was built. Ross R. Lesoine, Jr., filed exceptions. On June 12, 1980, the lower court, sitting en banc, dismissed the exceptions and made the decree nisi a final decree. On appeal, Ross R. Lesoine, Jr., argues that the lower court erred in not finding that he had an easement by implication. We affirm.
Ethel G. Lesoine, the parties' common grantor, owned a large tract of land in Price Township, Monroe County. She granted, by a deed dated September 6, 1960, an easement to Harry S. Fox and Pardee Place "as and for a passageway." A road built on this easement ran north to south, turning slightly to the west at its southern extremity. It may be illustrated as follows:
On January 9, 1963, Ethel G. Lesoine divided her tract of land into eastern and western segments and conveyed the
[ 293 Pa. Super. Page 233]
segments to her two sons, John F. Lesoine and Ross R. Lesoine, Sr., and their respective wives, Minnie L. and Mildred A. Lesoine, as tenants in common. The western segment consisted of approximately seven acres, the eastern of approximately twelve acres.
The deed conveying the western segment excepted from the conveyance the road previously granted to Harry S. Fox and Pardee Place. It read:
EXCEPTING also the roadway, 33 feet wide, along the easterly line of the remaining tract above, which roadway was granted by Ethel G. Lesoine to Harry S. Fox and Pardee Place by grant dated September 20, 1960, and recorded in the aforesaid office in Deed Book Vol. 272, page 221.*fn1
Thus, by referring to the grant to Harry S. Fox and Pardee Place, the road was described as pictured above -- turning to the west at its southern extremity. However, the deed conveying the eastern segment ...