Appeal from the Order entered January 29, 1988 in the Court of Common Pleas of York County, Civil Division, No. 84 S 2675.
John Thompson, Jr., York for appellant.
John R. Gailey, Jr., York, for appellees.
Beck, Kelly and Hester, JJ.
[ 383 Pa. Super. Page 293]
Romaine Smith appeals from an order determining that Dennis and Barbara Waltimyer owned a right-of-way by prescription as to the driveway located along the property between the parties' residential lots. We affirm the order of the trial court.
The relevant facts as found by the trial court may be summarized as follows. In 1937, Ervin and Clyde Eckert, brothers, owned two adjacent lots and decided to construct a driveway between them with approximately half of the driveway located on each lot. They used the entire driveway in common.
In July of 1947, Clyde Eckert transferred title and possession of his land to Henry Kessler, Jr. Thereafter, Mr. Kessler used the driveway between the lots without requesting or receiving permission to use the portion of the driveway located on Ervin Eckert's lot. In 1976, Mr. Kessler transferred title and possession of his lot to the Waltimyers. They, too, continued to use the portion of the driveway on Ervin Eckert's lot without requesting or receiving permission to do so. Because Ervin Eckert continued to reside in the house on his lot throughout this period, the trial court found that he had actual notice of the use of the portion of the driveway on his lot by both Mr. Kessler and the Waltimyers.
In 1966, Ervin Eckert transferred title and possession of his lot to Mrs. Smith. Until 1984, both the Waltimyers and Mrs. Smith used the driveway in common without requesting or receiving permission to use the portion of the driveway located on the other's lot.
In 1984, however, Mrs. Smith constructed a barrier down the property line obstructing the use of the driveway. The Waltimyers filed suit requesting a declaration of their right-of-way and removal of the barrier erected. Based upon the
[ 383 Pa. Super. Page 294]
foregoing facts and this Court's opinion in Orth v. Werkheiser, 305 Pa. Super. 576, 451 A.2d 1026 (1982), the trial court granted the relief requested. Post-trial motions were denied and this appeal followed.
On appeal, Mrs. Smith contends that the trial court erred in relying on our decision in Orth, and that because the Waltimyers failed to establish that the original mutual permissive uses of the Eckert brothers had ceased, adverse use was not established. She urges reconsideration of our rejection in Orth of the dicta from Margoline v. Holefelder, 420 Pa. 544, 218 A.2d 227 (1966), which had stated that even where there is no attempt to tack a prior use to meet the prescriptive period, a permissive use by a predecessor will be deemed to continue permissively by the successor until the contrary is shown. ...