Puleo v. Bearoff

• Decision Date: 22 March 1954
• Parties: PULEO v. BEAROFF et al.
• Court: Pennsylvania Supreme Court

103 A.2d 759

376 Pa. 489

PULEO v. BEAROFF et al.

Supreme Court of Pennsylvania.

March 22, 1954

Equitable action to enjoin defendants from using right of way consisting of private grade crossing over railroad on ground that plaintiff had an exclusive easement thereto. The Curt of Common Pleas of Montgomery County, as of June term, 1951, No 9, William F. Dannehower, J., entered decree dismissing bill and plaintiff appealed. The Supreme Court, No. 8, January term, 1954, Horace Stern, C. J., held that railroad company's grant, by written agreement, of nonexclusive easement to defendants to use existing private roadway crossing over railroad tracks was not terminated by company's subsequent grant, to plaintiff, of a nonexclusive easement over the same roadway.

Decree affirmed.

Alphonso Santangelo, Norristown, for appellant.

Desmond J. McTighe, William B. Koch, Duffy, McTighe, & McElhone, Norristown, for appellees.

Before STERN, C. J., and STEARNE, JONES, BELL CHIDSEY, MUSMANNO and ARNOLD, JJ.

HORACE STERN, Chief Justice.

Plaintiff appeals from the dismissal of his bill in equity which sought to enjoin defendants from using a right of way as to which he claimed an exclusive easement.

Plaintiff is engaged in the scrap iron and metal business and owns and occupies an industrial property along the banks of the Schuylkill River between Bridgeport and West Conshohocken in Montgomery County. The property lies between the main line of the Reading Railroad and the river, and the sole access to it from the public highway is by a private grade crossing over the railroad. Defendants are engaged in the manufacture and sale of cinders, and they likewise own and occupy a property between the river and the main line of the Reading Railroad. Also in the case of this property a private grade crossing over the railroad would be needed to gain access to the public highway.

Plaintiff purchased the first tract constituting part of his present property in 1924; no mention was made in the deed of any right of way over the railroad but plaintiff began, and has ever since continued, to use such a crossing.

In 1946 the Reading Company, by written agreement, gave defendants permission to use ‘ the existing private roadway crossing’ over its tracks,^[1] on condition, however, that it should be removed at any time upon notice to that effect given by the Reading Company, and defendants agreed to indemnify the company from all claims and actions for injury or damage to them or their invitees using such crossing.

In 1948 plaintiff acquired a second tract of land from the Reading Company lying between his other land and that of defendants. The deed stated, as further consideration for the conveyance, that plaintiff agreed to indemnify the company from all claims and actions growing out of the use of ‘ the private crossing at grade’ over the company's tracks ‘ at the location shown’ on the ‘ attached blue print, in order to reach the property hereby conveyed.’

Since defendants began to use the crossing they have made extensive repairs to it and have cooperated with the Reading Company in widening it from 16 to 40 feet. Plaintiff notified them that they had no right to such use and requested the Reading Company to give them notice to discontinue, but no such notice has been given. Defendants continued to use the crossing, whereupon plaintiff brought the present bill in equity.

We are in accord with the decree of the court below dismissing plaintiff's bill. The question turns on whether he had an exclusive right to the use of the crossing. Assuming, without deciding, that his more than 21 years' use of it since 1924 gave him a right of way by adverse possession (as to which there is grave doubt under the evidence), nevertheless any right...