Appeal from the Order dated August 29, 1984 of the Court of Common Pleas of Cambria County, Civil Division at No. 1982-1384
Kevin L. Sanders, Assistant Public Defender, Johnstown, for appellants.
James F. O'Malley, Johnstown, for appellees.
Olszewski, Popovich and Montgomery, JJ.
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The Plaintiff-Appellees instituted this action seeking a declaratory judgment with regard to the rights of the
[ 352 Pa. Super. Page 248]
Defendant-Appellees to use a private road in Westmont Borough, Cambria County, for ingress and egress. The Appellees own properties on either side of the private drive, known as Francis Alley, and sought to prevent the Appellants from using that road for ingress and egress. Property owned by the Appellants is situated at the end of Francis Alley, and they have asserted rights to use the alley based upon grounds including public easement, easement by necessity, private easement and rights obtained by prescriptive use of the property for ingress and egress for a period in excess of twenty-one years.
Following a trial, the lower court entered an order in favor of the Appellees. It held that the Appellants only had a permissive right to continue to use Francis Alley so long as they did not interfere with the use of it by the Appellees. Moreover, the lower court's order declared that if the Appellees gave notice to the Appellants of an intention to terminate and withdraw the alleged permissive right of the Appellants to use Francis Alley, or if the Appellants interfered in any way with the use by the Appellees of the right of way, the Appellants' rights to use the alley could be terminated.
The lower court determined that the Appellants had not established a public right of use with regard to the alley, had not established an easement on grounds of necessity, and had not supplied proof with regard to their claim of rights based on the theory of prescriptive easement. The lower court did not fully address the Appellants' claims of a private right of easement. We need only address our attention in this case to the last mentioned basis upon which the Appellants claimed a right to use Francis Alley. We find that the pertinent facts and applicable law mandate a finding that the Appellants enjoy a private right to use Francis Alley, for ingress and egress, which cannot be extinguished by any notice or similar action by the Appellees.
The record shows that all of the land in issue in this case, including the properties owned by the Appellees and Appellants,
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as well as Francis Alley, were acquired as part of a seventy-five acre plot by Christopher Palliser from Cambria Iron Company by deed dated December 1, 1877, recorded on January 28, 1878 in the Recorder's Office of Cambria County. By a Plot Plan dated August 13, 1907, Christopher Palliser laid out streets and alleys and individual lots in the parcel, and his Plot Plan was thereafter filed in the Cambria County Recorder of Deeds Office on October 31, 1911, by Mr. Palliser's heirs. That Plot Plan included Francis Alley. Subsequently, by a succession of conveyances wherein Francis Alley continued to be used as a boundary in the description of the properties conveyed, both the ...