No. 3250 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Northumberland County, No. CV-77-2443. No. 3251 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Northumberland County, No. CV-77-2444.
Joey A. Storaska, Sunbury, for appellants.
R. Michael Kaar, Milton, for appellees.
Brosky, Wieand and Hester, JJ.
[ 330 Pa. Super. Page 60]
George and Beverly Brouse brought actions against Lee R. Hauck and against Richard and Dorothy Ditzler to quiet title to one-half of the bed of a vacated township road. They contended that they had acquired title by adverse possession or, at least, that they had acquired an easement by prescription with respect thereto. After they had presented their evidence to the court, which heard the action non-jury, a compulsory non-suit was entered. Thereafter, the court removed the non-suit with respect to the Brouse claim of a prescriptive easement over the portion of the road abutting the land of Lee Hauck. In all other respects, the court refused to remove the non-suit. The court's order is the subject of the present appeals.
In reviewing the propriety of a compulsory non-suit, this Court will view the evidence in a light most favorable to the plaintiffs and give them the benefit of every reasonable inference arising therefrom. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 371, 372 A.2d 736, 740 (1977); Barney v. Foradas, 305 Pa. Super. 404, 407, 451 A.2d 710, 712 (1982); Adams v. Euliano, 299 Pa. Super. 348, 349-350, 445 A.2d 788, 789 (1982). A non-suit can only be entered in a clear case. Barney v. Foradas, supra; Adams v. Euliano, supra; Peair v. Home Association of Enola Legion No. 751, 287 Pa. Super. 400, 403-404, 430 A.2d 665, 666-667 (1981).
A portion of appellants' farm in Milton, Northumberland County, abutted the northern edge of a township road. The southern edge of the township road was abutted by lands of
[ 330 Pa. Super. Page 61]
appellant and also by lands of Hauck and Ditzler. When the township road was vacated in 1928, the center line of the former road became the common property line. The lands of the parties, with the disputed area shaded, appears from a sketch received in evidence as follows:
Brouse's predecessor in title was Charles J. Hauck,*fn1 who took title by conveyance in 1945. Charles Hauck used the entire bed of the vacated road regularly and continuously
[ 330 Pa. Super. Page 62]
to reach the entrance to a barn situated at a point approximately opposite a line dividing the properties of Lee Hauck*fn1 and Mr. and Mrs. Ditzler. Charles Hauck also used this route when he wished to gain access to the fields north of the railroad right of way with his farm equipment. The whole of the vacated road was maintained by Charles Hauck, who kept it clear of snow; it was used also by the Hauck children to play and ride their bicycles. Following the death of Charles Hauck, his widow conveyed the farm in 1963 to Homer Brouse, the father of George Brouse. George Brouse acquired title in 1975. He testified that he and his father had continuously used the vacated township road for similar purposes until the present time. This evidence was sufficient, if believed, to show a prescriptive right to use the disputed southern half of the vacated road for right of way purposes. See: Mather-Klock, Inc. v. Plymire, 349 Pa. 194, 36 A.2d 802 (1944); Minteer v. Wolfe, 300 Pa. Super. 234, 446 A.2d 316 (1982). Therefore, the court correctly removed the ...