Bright v. Allan

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: POTTER, J.
• Citation: 53 A. 248,203 Pa. 386
• Parties: BRIGHT et al. v. ALLAN.
• Decision Date: 13 October 1902

53 A. 248
203 Pa. 386

BRIGHT et al.
v.
ALLAN.

Supreme Court of Pennsylvania.

Oct. 13, 1902.

Appeal from court of common pleas, Schuylkill county.

Bill by Joseph C. Bright and George L. Bright against Thomas G. Allan to restrain the obstruction of a right of way. Decree for plaintiffs, and defendant appeals. Affirmed.

The court below found the facts to be as follows:

"(1) That Samuel Silliman, on April 13, 1839, became the owner of a piece of ground, situate in the borough of Pottsville, containing 120 feet on Center street, and extending of that width westwardly along Mahantongo street a distance of 230 feet to Second street, and, whilst the owner of said ground, divided it into lots, and laid out for the use of the owners of the lots an alleyway twelve feet in width, commencing on Mahantongo street, about 100 feet west of Center street, and extending southwardly towards lot six (6), and then eastwardly to the rear of complainants' property. (2) That the alleyway commencing on Mahantongo street and extending southwardly has well-defined boundaries in height and in width of eleven feet and seven inches for forty feet, and from the termination of the forty feet, whilst a right of way exists, yet it has been uncertain in its location so far as the use of same relates. (3) That complalnants and those under whom they claim title have owned since October, 1859, the plot of ground described in the first paragraph of their bill of complaint, and have used the alleyway referred to for the purpose of reaching the rear of their property, and, in passing to and from the rear of their property from the termination of the forty-foot alleyway, have not used any well marked or defined path or road, but have driven across respondent's ground diagonally in different ways.

(4) That respondent and those under whom he claims title have owned the adjoining plot of ground, and all of the ground in the rear of complainants' property, for over fifty years, and have used the same for hotel purposes.

(5) That respondent within the last few years has rebuilt his hotel buildings, and in so doing has extended them westward to the line of the alley referred to, and has raised the dividing walls which existed between the adjoining buildings, in height from three to twelve feet, and in thickness nine inches, and has occupied eleven feet two inches by eight and one-half Inches of the twenty-nine feet and three inches ground in the rear of complainants' lots, which ground belongs to respondent, and has been and is used by him and his predecessors in ownership for hotel purposes. (0) That the dividing wall between adjoining properties of complainants and respondent was erected and has been continuously used as a party wall. (7) That the additional use of the dividing wall made by respondent has not weakened same, or increased its burden beyond what it is competent to bear. (8) That the use of the twenty-nine feet and six inches by complainants, so far as the same has been used, has been in common with the use and occupancy of the same by the owners of the hotel property and their tenants, and has not been adverse to the rights or occupancy of the respondent. (9) That the erection of the hotel building, as now constructed, does not interfere with complainants' right of way as found to exist by this opinion. (10) That complainants are entitled to use a right of way commencing on Mahantongo street, and extending in width eleven feet and seven inches southwardly, parallel with Center street to the southern boundary line of the hotel buildings as now erected, and extending from that point eastwardly, of the same width, to the rear of complainants' property. (11) That the maintaining any frame box or boxes, or buildings, stones, iron, or any material in the right of way, as indicated in this opinion, is an interference with the complainants' use of said right of way, and must be removed. (12) That the areaways in rear of hotel buildings.

53 A. 249

if properly constructed and covered with sufficient gratings, will not interfere with complainants' use of the right of way.

"And now, to wit, September 2, 1890, after hearing and argument and due consideration, it is herewith ordered, adjudged, and decreed: (1) That the respondent, Thomas G. Allan, within ninety days from the confirmation of this decree, will securely construct and cover the areaways in the alleyway leading from Mahantongo street southwardly, and in the rear of the hotel buildings erected on respondents' property, by gratings of iron or other material of sufficient strength to safely sustain the weight of horses and loaded vehicles passing over same, and that said areaways and coverings be placed on a grade with the alleyway, and be thus maintained in the future. (2) That said respondent, Thomas G. Allan, be directed to keep open and free from all obstructions an alleyway eleven feet and seven inches in width, commencing on Mahantongo street, and extending southwardly, parallel with Center street, to the southern boundary line of the hotel buildings, as now erected, and extending from that point eastwardly, of the same width, to the rear of complainants' property. (3) That said respondent, Thomas G. Allan, remove all boxes, stones, iron, or other obstructions from...