Appeal from the Judgment of the Superior Court of Pennsylvania, entered September 22, 1987 at No. 00125 Philadelphia, 1987, affirming the Judgment of the Court of Common Pleas of Northampton County, Pennsylvania at No. 1985-C-6646, dated December 8, 1986. Pa. Super. , 534 A.2d 137 (1987).
Jack A. Panella, Easton, for appellants.
Chester A. Reybitz, Bethlehem, for appellees.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, and Papadakos, JJ. Nix, C.j., joins the majority and files a concurring opinion.
This appeal presents a single issue: whether the appellants' easement, a right of ingress and egress over appellees' property, was extinguished by adverse possession. We answer in the negative.
Appellants, Andrew and Michael Estojak, own and operate a business known as Andy's Auto Body on Jennings Street in Bethlehem, Northampton County. The property on which this business is located is situated in a plan known as the Minsi Trail Farm, the plan of which was recorded in the Northampton County Recorder's Office on August 13, 1925.
On July 16, 1986, appellants purchased two additional lots in the Minsi Trail Farm Plan which lots (designated Lots Nos. 3 and 4 on the Appendix hereto) are located at the intersection of Yeates Street and East Union Street, two streets that were dedicated for public use on the recorded plan, but which were never accepted by the municipality for public use and were never opened to the public. On July
, 1985, appellants bulldozed and graded a roadway over East Union Street from Yeates Street through to its intersection with Jennings Street in order to gain ingress and egress to their newly purchased lots, and to facilitate travel from their business on Jennings Street to said lots.
Appellees are owners of certain lots adjacent to appellants' newly purchased lots on East Union Street. Appellees John and Sarah Mazsa own the lot east of appellants' lot no. 3 on the north side of East Union Street and fronting on Jennings Street (appellees Mazsas' lot is designated lot no. 1 on the Appendix); appellees A. Derwood and Elizabeth A. Johnson own the lot east of appellants' lot no. 4 on the south side of East Union Street and fronting on Jennings Street (appellees Johnsons' lot is designated lot no. 2 on the Appendix). Shortly after appellants bulldozed and graded the roadway across East Union Street, appellees Mazsa and Johnson erected a fence on East Union Street between their respective lots in order to prevent appellants from using said roadway for ingress and egress to their property.
On August 26, 1985, appellants filed a declaratory judgment action pursuant to 42 Pa.C.S.A. §§ 7531-7541 asking the Court of Common Pleas of Northampton County to declare and establish their right of access over the unopened portions of East Union Street and Yeates Street, and requesting the court to restrain and enjoin appellees from blocking said access. In their complaint for a declaratory judgment and other relief, appellants alleged, inter alia, that when the City of Bethlehem failed to accept the unopened portions of East Union and Yeates Streets within twenty-one years after their dedication, the city's rights to said streets lapsed and ownership of the property dedicated for use as a public street "reverted" to appellees as owners of the adjacent land. The complaint further alleged, however, that "this ownership is subject to the private rights of owners of land within the Minsi Trail Farm Subdivision to use the land for access in and about the Subdivision."
Appellees' answer and counterclaim admitted that the ownership of the unopened portions of East Union and
Yeates Streets had "reverted" to the appellees as abutting landowners, but denied that appellants had any right of access over said property. To the contrary, appellees claimed that any right of access over said unopened streets had been extinguished by appellees' adverse possession of the land for a period in excess of twenty-one years. Appellees requested that appellants be denied any right of access over East Union and Yeates Streets and, further, that the appellants be ordered to restore the property to its original condition and to pay damages for the unlawful removal of trees and shrubs.
Trial was conducted on April 2, 1986 and the parties stipulated that ownership of the disputed property was as set forth in the complaint, i.e. that ownership of the disputed portions of East Union and Yeates Streets had "reverted" to the adjoining property owners, the appellees Mazsa and Johnson.*fn1 It was further stipulated that the disputed portions of East Union and Yeates Streets are laid out on the recorded Minsi Trail Farm Plan as being fifty feet in width and that the City of Bethlehem had never owned said unopened streets. Further, the parties "agree that the only legal issue which is to be addressed in this matter is whether or not the various [appellees] have extinguished the [appellants'] right of easement over the disputed portions of the unowned streets by adverse possession." Notes of Testimony (N.T.), April 2, 1986, at 4.
As it was also agreed that the parties claiming the benefit of adverse possession had the burden of proof, appellees Mazsa and Johnson ...