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CHARLES L. BUFFINGTON v. CHARLES L. BUFFINGTON (12/26/89)

filed: December 26, 1989.

CHARLES L. BUFFINGTON, SR. AND RUTH L. BUFFINGTON, HIS WIFE,
v.
CHARLES L. BUFFINGTON, JR. AND DIANE BUFFINGTON, HIS WIFE, APPELLANTS



Appeal from the Final Decree entered February 3, 1988 in the Court of Common Pleas of Schuylkill County, Civil, No. S-1049.

COUNSEL

Ronald R. Pellish, Pottsville, for appellants.

Fred J. Wiest, Jr., Pottsville, for appellees.

Cavanaugh, McEwen and Popovich, JJ.

Author: Mcewen

[ 390 Pa. Super. Page 63]

We here consider an appeal from a final decree, entered following the dismissal of appellants' exceptions to a decree nisi, which (1) enjoined appellants from maintaining a fence line, or any other barricade, which would prevent free access to Township Road No. 850, a gravel road abutting the appellees' premises, and (2) ordered appellants to remove a water line extending from Wildcat Creek across appellees' premises to the home of appellants. We affirm.

The underlying factual history is well mirrored by the findings of fact recounted by the distinguished Judge Wilbur H. Rubright in his able opinion:

1. Appellees, Charles L. Buffington, Sr. and Ruth L. Buffington, his wife, are adult individuals residing at R.D. 1, New Ringgold, Schuylkill County, Pennsylvania.

2. Appellants, Charles L. Buffington, Jr. and Diane Buffington, his wife, are adult individuals residing at R.D. 1, New Ringgold, Schuylkill County, Pennsylvania.

3. Appellees are the owners of a parcel of ground situate in East Brunswick Township, Schuylkill County, Pennsylvania; being 10 acres and 32 perches, having been acquired by deed dated September 23, 1968 in Deed Book 1103, page 259.

4. The appellants conveyed their undivided one-half interest in the premises referred to in Finding No. 3 by deed dated December 24, 19[70] and recorded in Deed Book 1132, page 772.

5. The common owner of the premises of the appellees and appellants first conveyed the premises now owned by the appellees in 1896 by deed recorded in Deed Book 156, page 298.

6. The description in the deeds of the appellees predecessor in title and the description in the deed into the appellees has remained substantially unchanged since the first deed out of the common owner in 1896. The description contains calls by course and distance indicating its abutment to a public road.

[ 390 Pa. Super. Page 647]

. The roadway which transverses the property of the appellees and abuts the premises of the appellees and appellants is Township Road No. 850, a township road which has existed since the early 1800's.

8. The Township of East Brunswick did in fact abandon all except .4 of a mile of Township Road No. 850 where it existed in East Brunswick Township. This abandonment took place just prior to 1932.

9. Following the abandonment by the Township of East Brunswick, this township road was maintained by Atlas Powder Company as access to its plant at Reynolds and was so maintained until another entrance to the plant was constructed from Route No. 443 in West Penn Township to its plant in that township.

10. The general public used Township Road No. 850 until its abandonment and the roadway was used thereafter by the abutting landowners for necessary access to their properties . . . .

11. That the fence as erected by appellants -- confiscates a strip of land of the appellees and prohibits them free access to their property.

12. The appellants acquired title to an abutting piece of property, 1.1113 acres in size, by quit-claim from Atlas Powder Company by deed dated April 14, 1986 and recorded in Deed Book 1373, page 405.

13. The appellants erected a rail fence which encompassed the entire roadbed of the abandoned portion of the road abutting the premises of the appellants and appellees in 1986.

14. The appellants, in 1982, constructed a water line from the stream which transverses both the property of the appellees and the appellants, known as Wildcat Creek.

15. There was no written or oral agreement of any kind between the parties regarding the installation of the water line except by tacit consent of the appellees for failure to object to its construction.

Appellants contend in this appeal from the final decree that:

[ 390 Pa. Super. Page 65]

I. The decree nisi and order of court are contrary to the evidence and contrary to the weight of the evidence in that the evidence presented by the appellees failed to establish any ownership rights to the roadway of the appellants. The evidence further established that the appellants are the owners of the roadway and have exclusive ownership rights as against all other persons, including appellees.

II. Appellants acquired an easement or irrevocable license from appellees to construct a water line on ...


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