Kern v. Greensweig

• Decision Date: 26 February 1937
• Docket Number: 36-1936
• Citation: 125 Pa.Super. 430,190 A. 182
• Parties: Kern, Appellant, v. Greensweig
• Court: Pennsylvania Superior Court

190 A. 182

125 Pa.Super. 430

Kern, Appellant, v. Greensweig

No. 36-1936

Superior Court of Pennsylvania

February 26, 1937

Argued December 14, 1936

Appeal from decree of C. P. Northampton Co., April T., 1928, No. 5 in case of Ida A. J. Kern v. Charles S. Greensweig.

Bill in equity for injunction. Before Stotz, J.

The facts are stated in the opinion of the Superior Court.

Decree nisi entered granting mandatory injunction. Exceptions to findings of fact of chancellor and decree nisi sustained by court in banc, opinion per curiam and decree entered dissolving injunction. Plaintiff appealed.

Errors assigned, among others, were various excerpts from opinion of court in banc.

Decree affirmed.

William H. Schneller, for appellant.

Carleton T. Woodring, of Walter, Woodring & Strausburg, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Baldrige, J.

The plaintiff filed a bill in equity, praying for an injunction to restrain the defendant from obstructing and interfering with a right of way. The chancellor, after a hearing, granted an injunction as prayed for, and ordered the defendant to remove his dwelling house built on part of the alleged right of way. The court in banc sustained exceptions filed to the chancellor's findings, dissolved the injunction, and dismissed the plaintiff's bill. The plaintiff appealed.

The road in dispute lies within the borough of Walnutport, Lehigh township, Northampton county, and runs the length of an island, approximately 1600 to 2000 feet long and varying in width from 100 to 500 feet, bounded on the east by the Lehigh Coal & Navigation Company canal and on the west by the Lehigh river. The northern terminus of the road is the state highway between Walnutport and Slatington.

Elias German was the owner of all this island except a narrow strip lying along the canal. In 1895 he conveyed a portion of it to Benjamin Best and granted a right of way, which appeared in the deed in the following language:

"The said party of the first part by these presents hereby granting the privilege to the said Benjamin Best and to his heirs and assigns, the free and uninterrupted use, liberty and privilege of, and passage in and along said roadway or passage way of twenty feet in width along the eastern line of the property or land of the said party of the first part, 'being along the line of the Lehigh Coal and Navigation Company's land,' from the above said described tract or piece of land northward to the Farm House [known] as the Island Park House and from said farm house northwardly as far as said Elias German's land extends the said Benjamin Best and his heirs and assigns are privileged to use the same roadway that is used as a driveway by said Elias German or his heirs or assigns, the said Benjamin Best shall have free ingress, egress, and regress to and for his own use or his heirs and assigns, his and their tenants and under-tenants, occupiers or possessors of the said described tract or piece of land at all times forever hereafter."

Three years thereafter German conveyed, by deed, to Best additional land, together with the same rights to this road as previously granted, except the width thereof was stated as 25 feet. In 1907, the heirs of Benjamin Best deeded to Ida A. J Kern, the plaintiff, a portion of this land situate in the southern part of the island, together with the right to use the road aforesaid.

Greensweig, the defendant, acquired another portion of the original German tract, lying adjacent to and north of the plaintiff's land and extending from the river to within a little over 20 feet of the property of the Lehigh Coal & Navigation Company. The width thereof was not stated in the record or definitely proven, but from a rough drawing admitted in evidence upon the part of the defendant, as well as the photographs in the record, it appears to be approximately 40 to 50 feet.

The plaintiff claims that the proof she offered established that she is entitled to the use of a road 25 feet in width, running practically straight from her property northward, through part of defendant's home, to the state highway, which, she contends, is the route used by owners of the island and the public for more than 40 years. She offered no evidence as to the nature and width of the road, but relied on the description in the deeds. It is to be noted that the deeds do not give the width of the road north of the farm house, but designate it as "the same roadway that is used as a driveway by said Elias German or his heirs or assigns."

The defendant maintained in the court below, as here, that the plaintiff is entitled only to a 25-foot roadway to the farm house; that from there to the public highway her grant is confined to a road used by German, his heirs or assigns; that on the site of his home there existed originally an ice house, which remained there from 1898 and prior thereto to 1918 or 1919, when a scale and office, which encroached 2 feet on the roadway as located by plaintiff, were erected on the same site; that in 1925, after the scale had been removed, the office was converted by him into a home. The defendant argues, therefore, that this roadway could not have traversed his property in the manner now alleged by plaintiff.

The chancellor's 21st finding of fact is: "The roadway crossing the Greensweig property passed at a point six feet east of the western wall of the scale house erected in 1918 and extended in width to the west twenty-five feet." If that fact is correct, the entire roadway, except the eastern 6 feet thereof, lies to the west of defendant's house. This is contrary to the proof of the location of the road. The plot of the island relied upon and offered in evidence by the plaintiff shows that the alleged road ran through the eastern portion of plaintiff's house and the remaining...