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CHARLES ORTH AND MARTHA S. ORTH v. WILLARD T. WERKHEISER AND EVELYN E. WERKHEISER (10/22/82)

filed: October 22, 1982.

CHARLES ORTH AND MARTHA S. ORTH
v.
WILLARD T. WERKHEISER AND EVELYN E. WERKHEISER, APPELLANTS



No. 1546 Philadelphia, 1981, Appeal from the Order of May 15, 1981 in the Court of Common Pleas of Northampton County, Civil Action - Equity at No. 1979-CE-10736.

COUNSEL

Daniel George Spengler, Bath, for appellants.

Constantine M. Vasiliadis, Bethlehem, for appellees.

Spaeth, Cavanaugh and Montemuro, JJ.

Author: Spaeth

[ 305 Pa. Super. Page 577]

This is an appeal from a final decree in equity enjoining appellants from interfering with appellees' use of a ten foot wide dirt lane running from appellees' property across appellants' property to a public road. Appellees claimed, and the chancellor found, that they had acquired an easement by prescription. The chancellor therefore entered a decree nisi ordering appellants to restore the lane to its former condition and enjoining them from interfering with appellees' use of the lane for ingress and egress. On appellants' exceptions, the court en banc approved the chancellor's findings and made the decree nisi final. We affirm.

Appellants own a 100 acre tract in Bushkill Township, Northampton County. Appellant-husband purchased the tract in 1942 and, with his wife, has owned it ever since. Appellees' property is a twelve acre tract next to appellants' property. Appellees' line of title may be summarized as

[ 305 Pa. Super. Page 578]

    follows. On April 7, 1951, Brice Freestone sold the 12 acre tract to Frank Noecker. On January 23, 1953, Noecker sold the tract to Ralph Lichtenwalner and Kenneth H. Engler. On April 27, 1956, the tract was sold through a straw party to Kenneth H. and Anita E. Engler and Paul C. and Emma King Seyfried. On August 6, 1966, the Seyfrieds sold their one-half interest to The Second National Bank of Nazareth. On May 23, 1969, the Englers and the Second National sold the tract to appellees.

Appellees' tract is landlocked; the only access to it is the lane over appellants' tract. When Freestone sold the tract to Noecker, in 1951, he purported to convey a right-of-way over appellants' tract. In fact, however, Freestone had no right-of-way and there was no basis for his proposed conveyance of one. When appellant-husband received a map from Freestone showing the purported right-of-way, he realized that he "had not signed any easement" and "felt that it [the map] was just a piece of paper." N.T. 50. He therefore pulled out some stakes that Freestone had set out.

Sometime in 1951 appellant -- husband and Noecker met. Appellant-husband told Noecker "that there was a row of trees that had marked off a logging trial and the ruts . . . were grown up with saplings . . . ." N.T. 44. Noecker said that he would cut the saplings, and appellant-husband said that he "would blast out these stumps [with dynamite] . . . and we would both have a continuation of the lane down to his corner . . . ." Id. Thus Noecker, with appellant-husband's permission, got access over appellants' tract to his tract.

Ralph Lichtenwalner testified that while he was an owner of the 12 acre tract, from January 1953 to April 1956, he used the lane that Noecker and appellant-husband had cleared "about five times, four or five times." N.T. 16. He never discussed his right to use the lane with appellants, but used it without asking anyone's permission.

Kenneth Engler testified that while he was an owner of the 12 acre tract, from January 1953 to May 1969, he used the lane across ...


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