Appeal from the Order of the Court of Common Pleas of Northampton County in case of Bethlehem Township v. Joseph Emrick, Peter J. Emrick and Elaine Emrick, No. 1980-C-5124.
Mark S. Sigmon, Sigmon & Ross, P.C., for appellant.
Richard J. Haber, with him Donald B. Corriere, Haber and Corriere, for appellees.
Judges Blatt, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 77 Pa. Commw. Page 329]
This action to quiet title is before us on appeal by Bethlehem Township (appellant) from a decision of the Court of Common Pleas of Northampton County.*fn1 The court adjudged Joseph Emrick, Peter J. Emrick, and Elaine Emrick (appellees) the owners of a tract of land located in Bethlehem Township.
On August 8, 1914, Albert D. Oberly and Valetta M. Oberly, his wife, conveyed to the Easton and Western Railroad Company, its successors and assigns, the land which is the subject of this dispute. The deed from the Oberlys to the Railroad contained the following provision:
ThAt [sic] in case the [grantee], its successors or assigns, should at any time hereafter cease to use, or abandon, the above described strips of land as a railroad, right of way, or for railroad, purposes [sic], and such non use [sic] or abandonment, shall continue, for one (1) Year after notice, in writing, from the [grantor], his heirs or assigns, that he or they desire to re enter [sic] on said land, and repossess
[ 77 Pa. Commw. Page 330]
himself or themselves of the same, then and in such case, after the lapse of said one (1) Year after notice as aforesaid such non use [sic] or abandonment continuing, the [grantor], his heirs or assigns, may ren enter [sic] upon the above described land, and repossess himself or themselves, thereof, as of his or their first and former estate therein.
On May 7, 1959, Elizabeth Oberly Collins, Earl B. Collins, C. Catharine Oberly, and Violet M. Oberly, successors to Albert D. Oberly and his wife, conveyed to the Emricks a 109.817 acre parcel of land which included the strip of land conveyed to the Easton and Western Railroad Company in 1914. The deed conveying the property to the appellees provided that the conveyance was under and subject to the rights of the Easton and Western Railroad Company, as set forth in the deed from Albert D. Oberly and Valetta M. Oberly to the Railroad. In the meantime, in 1944, Easton and Western Railroad Company had merged with and became known as the Central Railroad Company of Pennsylvania (Central Railroad Company).
In February of 1976, the Central Railroad Company ceased using the strip and removed the railroad tracks, thereby abandoning the property. Also in February of 1976, the appellees entered upon and took possession of the parcel, plowing the strip and planting grain thereon. The appellees, prior to entering the land, did not give written notice to the Central Railroad Company, as successor to the Easton and Western Railroad Company, of their intent to do so.
On March 23, 1979, the Central Railroad Company conveyed to Bethlehem Township by quitclaim deed whatever interest it ...