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BOROUGH EDGEWORTH v. ARTHUR LILLY (11/03/89)

decided: November 3, 1989.

BOROUGH OF EDGEWORTH, A MUNICIPAL CORPORATION
v.
ARTHUR LILLY, CATHERINE RUSSO, BHM COMPANY, EXXON CORPORATION, CONSOLIDATED RAIL CORPORATION AND ALBERT J. VESHIO. APPEAL OF ARTHUR LILLY



Appeal from Common Pleas Court, Allegheny County; Honorable Ralph J. Cappy, Judge.

COUNSEL

Norman J. Cowie, David M. McQuiston, Thomson, Rhodes & Cowie, Pittsburgh, for appellant.

Giles J. Gaca, Joseph W. Cavrich, Grigsby, Gaca & Davies, P.C., Pittsburgh, for Catherine Russo, et al.

Aloysius F. Mahler, David P. Helwig, Pittsburgh, for Consol. Rail Corp., et al.

Craig and Doyle, JJ., and Narick, Senior Judge.

Author: Narick

[ 129 Pa. Commw. Page 363]

Arthur Lilly (Lilly) appeals from the order of the Court of Common Pleas of Allegheny County that determined, pursuant to a declaratory action filed by the Borough of Edgeworth (Edgeworth), that a disputed section of Hazel Lane*fn1 is owned by Catherine Russo (Russo) by virtue of adverse possession. We affirm.

I. PROCEDURAL HISTORY

Edgeworth commenced the action for declaratory judgment against Lilly, Russo and the other defendants*fn2 requesting that the trial court determine the rights of the parties relating to a portion of Hazel Lane which abuts Russo's property.*fn3

[ 129 Pa. Commw. Page 364]

The trial court determined this case in two phases. Phase one determined that an offer of dedication contained in two deeds dated 1864 and 1872, with regard to the disputed section, did not create a public street because the offers of dedication in these deeds were never accepted as public within the twenty-one years prescribed by the Act of May 9, 1889 (Act), P.L. 173, 36 P.S. ยง 1961. Also in phase one the trial court held that the Act also implicitly applies to the dedication of Hazel Lane made within the 1872 deed as well as explicit dedications by reservation of a street within a plot plan. In the second phase, the trial court determined that 1) Russo had acquired the disputed section by virtue of adverse possession and 2) that even though Duquesne Light, a public utility, had owned the abutting property from 1920 until 1970, that Duquesne Light had not made use of the property in such a manner as to invoke the bar against acquiring property by adverse possession which is held by a public utility or governmental entity for a public purpose. Lilly appeals to this Court from the holdings in both phase one and phase two.*fn4

II. STATEMENT OF FACTS

This dispute arose when Lilly sought approval to operate a marina along the shores of the Ohio River in Edgeworth.*fn5 The only method of ingress or egress to the proposed docks would be through an underpass owned by the Pittsburgh, Ft. Wayne & Chicago Railroad and along the disputed section, which Russo controlled. Lilly obtained approval from the U.S. Army Corps of Engineers and the Pennsylvania Department of Environmental Resources to operate the

[ 129 Pa. Commw. Page 365]

    proposed docks, subject to the necessary zoning approval of Edgeworth.*fn6

The disputed section is mentioned in two deeds. By deed dated October 8, 1864, Mary Ann Way, a widow, and the heirs of Abishai Way (Ways), conveyed a parcel of land along the northern boundary of Hazel Lane, now owned by Russo. This deed reserved "however the use of Hazel [Lane] here-in-mentioned which is forty feet wide for a public Street." This was part of a larger parcel along the southern boundary of Hazel Lane which the Ways, by deed dated October 1, 1872, conveyed to Sewickley Gas Company.*fn7 This deed also contained a reservation of Hazel Lane.

Reserving for Public use Hazel [Lane] forty (40) feet wide and also Street forty (40) feet wide running south 27 1/2 East at right angles with Hazel Street, the centre line of which begins on Centre of Hazel [Lane] one hundred ...


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