Tarrity v. Pittston Area School Dist.

• Decision Date: 15 November 1974
• Parties: James TARRITY and Louise Tarrity, his wife, Plaintiffs, v. PITTSTON AREA SCHOOL DISTRICT and State Public School Building Authority, Defendants.
• Court: Pennsylvania Commonwealth Court

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328 A.2d 205 16 Pa.Cmwlth. 371 James TARRITY and Louise Tarrity, his wife, Plaintiffs,
v.
PITTSTON AREA SCHOOL DISTRICT and State Public School
Building Authority, Defendants. Commonwealth Court of Pennsylvania. Argued July 22, 1974.
Decided Nov. 15, 1974.

Joseph J. Musto, Lewis W. Wetzel, Wilkes-Barre, for plaintiffs.

[16 Pa.Cmwlth. 372] J. Earl Langan, Pittston, for defendants.

OPINION

ROGERS, Judge.

STATEMENT OF ISSUE

The plaintiffs, James Tarrity and Louise, his wife, suing in equity, seek an

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order directing the defendants, the Pittston Area School District and the State Public School Building Authority, to remove an obstruction to, and enjoining the defendants from future interference with, an easement of passage over lands of the defendant Authority occupied by the defendant School District. The plaintiffs claim the easement by prescriptive right. FINDINGS OF FACT

1. The plaintiffs purchased a house and lot located at and known as number 66 Reynolds Street, in the Borough of Hughestown, Luzerne County, in April 1947. They have occupied the premises as their residence since acquisition.

2. Reynolds Street runs in a generally north-south direction. The Tarrity property is on the west side of the street. Reynolds Street intersects Parsonage Street, a public street of the Borough of Hughestown, running in a generally east-west direction, at a place about 150 feet south of the Tarrity property. Reynolds Street is paved from Parsonage Street to a point about 300 feet north from its intersection with Parsonage Street, which point is about 150 feet north of the Tarrity property. The record does not disclose whether the paved portion of Reynolds Street is a public street of Hughestown Borough by official action of the governing body. It was paved by the Borough.

3. The grade of Reynolds Street descends from the Parsonage Street intersection. The grade of Reynolds [16 Pa.Cmwlth. 373] Street where it fronts the Tarrity property is 10 to 12 feet below its grade at the intersection.

4. In or before the year 1932, the then owner of land abutting the east side of Reynolds Street, and Pennsylvania Coal Company, constructed a concrete wall along and adjacent to the east side of Reynolds Street from Parsonage to a point about 300 feet from the intersection. The wall varies in height in conformity with difference between the grade of Reynolds Street and the land bordering on the east. It is therefore 10 to 12 feet at the location of the Tarrity home.

5. Immediately east of the top of the concrete wall and running parallel to the wall and Reynolds Street below, is a roadway known locally as New Street. This roadway was formerly a way on and through lands of The Pennsylvania Coal Company. New Street intersects with Parsonage Street just east of the Reynolds Street intersection and proceeds to the boundary line of Hughestown and the City of Pittston, where it joins and becomes Main Street, Pittston. Main Street leads to the Pittston business district.

6. Until about 1936, The Pennsylvania Coal Company maintained a fence around its premises fronting on Parsonage Street, which prevented public access to New Street and over it to Main Street, Pittston. During the period before 1936 when the fence obstructed New Street, persons desiring to travel to Pittston via Main Street, left Parsonage Street in Hughestown at Reynolds Street, proceeded north on Reynolds Street to the end of the wall, then traveled along a dirt lane across The Pennsylvania Coal Company's land to a point where the said lane extending from Reynolds Street converged with New Street. The extension of Reynolds Street from the end of the wall to New Street is the subject of this case. This lane from the end of the wall to New Street was used by members of the [16 Pa.Cmwlth. 374] general public openly, notoriously, visibly and continuously from a time not later than 1932 until November 1971, when the extension was obstructed by the defendants as described hereinafter.

7. The plaintiffs, James and Louise Tarrity, from and after their purchase and occupancy of premises 66 Reynolds Street used the extension of Reynolds Street from the end of the wall through lands of the coal company and its successors as access to New Street and thence to Main Street, Pittston, continuously, openly, notoriously, adversely and under a claim of right as a

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route of travel by automobile to and from Pittston, until November 1971, when the extension was obstructed by the...