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GEORGE BENJAMIN MILLER v. JOHN N. NICHOLS AND VERNA A. NICHOLS (06/05/87)

filed: June 5, 1987.

GEORGE BENJAMIN MILLER, JR. AND BETTY L. MILLER, HUSBAND AND WIFE, APPELLEES,
v.
JOHN N. NICHOLS AND VERNA A. NICHOLS, HUSBAND AND WIFE, APPELLANTS



Appeal from Order of the Court of Common Pleas, Civil Division, of Franklin County, No. A.D. 1985-10.

COUNSEL

Gregory L. Kiersz, Waynesboro, for appellants.

Edward F. Martin, Waynesboro, for appellees.

Wieand, Montemuro and Johnson, JJ. Johnson, J., files a dissenting opinion.

Author: Wieand

[ 363 Pa. Super. Page 509]

May the owner of the fee underlying a rural, township road compel the removal of a neighbor's mailbox which has been placed within the public right of way at the request of the United States Postal Service? The trial court held that the mailbox served only private interests and, therefore, upheld the right of the landowner to maintain an action in ejectment. The court ordered removal of the mailbox. We reverse.

The residence of John and Verna Nichols is situated on the north side of Amsterdam Road in Washington Township, Franklin County. The postmaster advised the Nichols that mail would not be delivered along the north side of the township road and directed them to place their mailbox on the south side of the road.*fn1 The Nichols complied with the postmaster's directive. They placed their mailbox along the south side of the township road, but within the public right of way and 1.67 feet from the edge of the paved road

[ 363 Pa. Super. Page 510]

    surface. The mailbox occupies an area of sixteen square inches. George and Betty Miller own the land which abuts the township road on the south. They object to the presence of the Nichols mailbox. When the Nichols refused a request to remove it, the Millers commenced an action in ejectment. The trial court entered judgment on the pleadings in favor of the Millers.

An owner whose property abuts a public street or road owns to the center of the road, subject to an easement of public use. 46 South 52nd Street Corp. v. Manlin, 398 Pa. 304, 157 A.2d 381 (1960); Scranton v. Peoples Coal Co., 256 Pa. 332, 100 A. 818 (1917); Lockhart v. Craig Street Railway Co., 139 Pa. 419, 21 A. 226 (1891). See also: 17 P.L.E. Highoways ยง 11. Appellees contend that a mailbox is a private use; appellants contend that it constitutes a public use and, therefore, can be maintained within the public right of way.

Prior to 1966, the extent of a public use easement varied according to whether the street or road was located in an urban or rural area. Rural roads were held to be for public passage only; whereas, city streets were for "any public service." 46 South 52nd Street Corp. v. Manlin, supra 398 Pa. at 312, 157 A.2d at 386. See also: William Laubach & Sons v. City of Easton, 347 Pa. 54, 32 A.2d 881 (1943). In 1966, the Supreme Court discarded the distinction between city streets and rural roads and held that the rule applicable to city streets was equally applicable to rural roads. Pittsburgh National Bank v. Equitable Gas Co., 421 Pa. 468, 220 A.2d 12 (1966). The court held that a subsurface pipeline, which had been laid in the bed of a township road, did not constitute an additional burden upon the abutting land. "[A]n existing street or public road," the court said, "may be used for any public service without additional compensation due the abutting landowner." Id., 421 Pa. at 471, 220 A.2d at 14. (emphasis in original). "[W]hen any public road is established, it is clearly for the purpose of public travel and commerce." Id., 421 Pa. at 474, 220 A.2d at 16 (emphasis in original). The court reasoned:

[ 363 Pa. Super. Page 511]

As the means and modes of public commerce increase, what at one time would have been considered a burden on the abutting landowner is no longer so . . . . Evolutionary changes must be considered in determining ...


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