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ELEANOR M. FLAHERTY AND JAMES F. FLAHERTY v. CLARENCE DEHAVEN AND SHIRLEY DEHAVEN (04/06/82)

submitted: April 6, 1982.

ELEANOR M. FLAHERTY AND JAMES F. FLAHERTY, HER SON, DAVID V. GUNTHER AND GERALDINE A. GUNTHER HIS WIFE,
v.
CLARENCE DEHAVEN AND SHIRLEY DEHAVEN, HIS WIFE, APPELLANTS



No. 2509 Philadelphia, 1981, APPEAL FROM THE DECREE OF AUGUST 24, 1981 IN THE COURT OF COMMON PLEAS OF MONROE COUNTY, CIVIL ACTION, EQUITY, No. 110-1980.

COUNSEL

David Angelo Martino, Bangor, for appellants.

Cal Leventhal, Honesdale, for appellees.

Hester, Cavanaugh and Cirillo, JJ.

Author: Cirillo

[ 302 Pa. Super. Page 415]

This is an appeal from a Final Decree of the Court of Common Pleas of the Forty-third Judicial District, Monroe County, granting a permanent injunction against the appellants, restraining them from interfering with the appellees' use of their right-of-way on the appellants' property.

On July 25, 1970, Earl L. and Eudora Hilliard conveyed certain real property to Frank (now deceased) and Eleanor M. Flaherty. The deed contained the grant of an easement in the nature of a right-of-way over and across a proposed street, forty feet in width, through the land of the Hilliards to Township Road 481. The situs of the right-of-way was not described in the deed. On June 19, 1978, Eleanor M. Flaherty, as sole surviving tenant by the entireties, conveyed this parcel to herself and her son, James F. Flaherty.

On March 3, 1973, the Hilliards conveyed certain real property to David V. and Geraldine A. Gunther, which lay adjacent to the Flaherty parcel. However, the deed did not contain a grant of an easement or right-of-way over the land of the Hilliards to Township Road 481 since the Gunthers had direct access to this road. The Hilliards did reserve a right-of-way over the conveyed property to be used in common with the Gunthers.

[ 302 Pa. Super. Page 416]

On June 12, 1971, the Hilliards conveyed certain property to Penn Hamilton Associates, Inc. In this deed the Hilliards reserved a right-of-way over the conveyed property for themselves, their heirs and assigns. On March 25, 1974, Penn Hamilton conveyed this parcel to Clarence and Shirley DeHaven. In this deed a right-of-way was reserved for the Hilliards.

In July 1970 a certain roadway which traversed and looped through the Hilliard property was in existence. The roadway is now in the Gunther and DeHaven properties where it provides access to Township Road 481. This roadway was originally a farmer's lane but was improved by Earl L. Hilliard prior to the sale of the various parcels.

In June 1979 the parties in this action agreed to construct and thereafter did construct a roadway on the western boundary of the DeHaven property. Subsequently, in November 1979, the DeHavens blocked the looped roadway so that it could no longer be used.

The appellees, Eleanor M. Flaherty and her son James F. Flaherty, and David V. and Geraldine A. Gunther, filed a complaint in equity on January 16, 1980 to enjoin the appellants, Clarence and Shirley DeHaven, from blocking the looped roadway. The complaint alleged that the actions of the DeHavens caused immediate and irreparable harm to the appellees. The DeHavens filed an answer and new matter denying the allegations and claiming the appellees had a right-of-way along the western boundary of their property. The appellees did not respond to this new matter. On August 19, 1980, after argument, the Honorable James R. Marsh issued a Decree Nisi, entering a permanent injunction against the DeHavens, ...


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