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LOUIS WYSINSKI v. SAMUEL MAZZOTTA (02/10/84)

filed: February 10, 1984.

LOUIS WYSINSKI, JR., AND CLARA WYSINSKI, HIS WIFE,
v.
SAMUEL MAZZOTTA, AND GRACE MAZZOTTA, HIS WIFE, APPELLANTS



No. 447 Philadelphia, 1982, Appeal from Decree of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 4606 February Term, 1976.

COUNSEL

Mead S. Spurio, Philadelphia, for appellants.

Stephen C. Zivitz, Philadelphia, for appellees.

Wickersham, Wieand and Lipez, JJ.

Author: Wieand

[ 325 Pa. Super. Page 130]

This is an appeal from a final decree in equity which adjudicated the location of the boundary line between lands owned by Samuel and Grace Mazzotta, appellants, and Louis and Clara Wysinski, appellees, in the City of Philadelphia. Appellees are the owners of No. 456 Parker Avenue; appellants own 456A Parker Avenue. Both lots were formerly owned by Edward Parker as part of a larger tract. On July 11, 1888, he severed the lot which subsequently became known as 456 Parker Avenue and conveyed it to William McClennen. The description in the deed was as follows:

[ 325 Pa. Super. Page 131]

All that certain lot or piece of ground described according to a survey thereof made June 8th 1888 by C.A. Sundstrom, Esquire, Surveyor and Regulator of the Eighth Survey District of Philadelphia Situate on the northwesterly side of Parker Avenue fifty feet wide and southwesterly side of a certain new street forty feet in width laid out and intended to be opened for Public use by the above named Edward C. Parker which said street leads into and from the said Parker Avenue at right angles thereto at the distance of one hundred and ninety-seven feet southwesterly from the southwesterly side of Ridge Avenue sixty feet wide in Roxborough in the twenty-first ward of the City of Philadelphia aforesaid containing in front or breadth on said Parker Avenue twenty feet and extending of that width in length or depth northwesterly between parallel lines at right angles to said Parker Avenue and along the said southwesterly side of said new street one hundred and twenty-five feet Bounded northwesterly and southwesterly by other ground of said Edward C. Parker northeasterly by said new street and southeasterly by Parker Avenue aforesaid which lot is part of a certain larger lot which Charles J. Hendricks et ux et al by Indenture bearing date the Thirtieth day of March A.D. 1877 and Recorded at Philadelphia in Deed Book D.H.L. No. 78 page 355 & 6 granted and conveyed unto the said Edward C. Parker in fee Together with the free and common use right liberty and privilege of said forty foot wide street as and for a passage way and water course and Public highway at all time hereafter forever. (emphasis supplied).

Title to this tract ultimately became vested in appellees by deed dated July 23, 1975 and by a correction deed dated May 5, 1976 from Anna E. Sowden. These conveyances have continued to describe the line of the forty feet wide street as being at right angles to Parker Avenue.

The adjoining lot at 456A Parker was at one time a part of the bed of the private street known as Ulmer Street. It was purchased by appellants at tax sale as the property of

[ 325 Pa. Super. Page 132]

Edward Parker's heirs on March 18, 1974. Appellants contended in the trial court and also on appeal that parol evidence had demonstrated that the street line and hence appellees' property line lay at less than a right angle from the point where it intersected with Parker Avenue. Because of this, appellants contend, the lot of appellees narrows while their lot expands as the common boundary line extends inward from Parker Avenue. The trial court held that the original Parker deed description for lot 456, through which appellees traced ...


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