No. 49 E.D. Appeal Dkt. 1984, No. 713 E.D. Allocatur Dkt. 1983, Appeal From the Opinion and Order of the Commonwealth Court of Pennsylvania entered on September 28, 1983, No. 3058 C.D. 1981, Pa. Commw ,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., concurred in the result. Nix, C.j., filed a dissenting opinion in which McDermott and Papadakos, JJ., joined.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
In this appeal, the appellants Joseph Emrick, Peter J. Emrick and Elaine Emrick challenge an order of the Commonwealth Court which holds that appellants failed to properly exercise their right of re-entry for breach of a condition subsequent in claiming a reversion of a certain tract of land in Bethlehem Township, Pennsylvania. The court concluded that appellants did not comply with the notice provision of the deed creating the interest and therefore they were not entitled to fee simple absolute possession of the strip of property in question.*fn1
On August 8, 1914, Albert D. Oberly and Valetta A. Oberly, his wife, conveyed the tract of land which is the subject matter of this lawsuit to the Easton and Western Railroad Company, its successors and assigns. The deed from the Oberlys to the Railroad Company contained the following reverter clause:
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, [sic] 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 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, [sic] thereof, as of his or their first and former estate therein.
In 1944, the Easton and Western Railroad Company officially became known as The Central Railroad Company of Pennsylvania (Central Railroad).*fn2
On May 7, 1959, Elizabeth Oberly Collins, Earl B. Collins, C. Catharine Oberly and Violet M. Oberly, Administratrix of the Estate of Richard L. Oberly, heirs to Albert D. Oberly and Valetta A. Oberly, his wife, conveyed to the appellants a tract of land in Bethlehem Township, Northampton County, Pennsylvania which included the land conveyed by Albert D. Oberly, et. ux. to The Easton and Western Railroad Company. The deed to the appellants contained a clause which provided that the conveyance was under and subject to the rights of the Easton and Western Railroad Company as set forth in the Albert D. Oberly, et. ux. to the Easton and Western Railroad Company deed of August 8, 1914.
In early 1976, Central Railroad removed its railroad tracks and ceased to use the subject strip of land as a railroad or for railroad purposes. Shortly after removal of the tracks and the abandonment of the parcel by Central Railroad, the appellants, without notice to the Railroad Company, took possession of the property, plowing the land and planting crops.
On March 23, 1979, Central Railroad remised, released and quitclaimed all of its right, title and interest in and to the subject strip of land to the appellee, Bethlehem Township.
The appellee assumed control of the land in question and without permission from appellants, commenced to construct a "bikeway" over it. Because of appellants' claim arising out of the reverter clause in the deed of ...