Dziedzic Et Ux. v. Kaplan Et Ux.

Opinion by Mb. Justice Patterson, Michael Dziedzic and Mary Dziedzic filed their bill in equity to restrain Isadore Kaplan and Frieda Kaplan, appellees, from proceeding with the erection of a concrete block building to be used as a slaughter house and to compel the removal of that portion already erected, alleging an encroachment upon .an easement existing by virtue of a conveyance of land according to a plan laying out the land into streets, alléys and plots. Edgar J. Hull, one Of the heirs of George M. Hull, the original owner of the land involved, was'permitted to. intervene as-a party plaintiff. The answer to the bill denied the existence of the easement. After a hearing, the chancellor concluded that appellants failed to satisfactorily prove the existence of .an easement and dismissed the bill. This, appeal is from the .decree of the court below- dismissing exceptions to the adjudication. . ■ The bill of complaint' avers that': The respective properties of appellants and appellees are situate, iii what is knoAvn as Hull’s Addition, in the Borough of Olyphant, Lackawanna County. All of the deeds to land here involved-refer to a plan'of Hull’s Addition recorded in the Office for the Recording of'Deeds in and for the County, of Lackawanna.: The;plan shows Hull Avenue extending from Lackawanna Street to the Lackawanna *421 River.' By reason- of the -recitation of tlie -plan in - the deed of ’ conveyance to appellants, they became owners] of an easement upon all-streets and alleys- shown- thereon, arid theré arose implied-covenants that'streets and alleys thereon set forth should be forever open: to' their "use. Isadore Kaplan and-Frieda Kaplan,’appellees,, in complete disregard of "the aforesaid rights of appellants, commenced the' erection across Hull Avenue of a concrete block building intended to bé used as a slaughter house. The bill concluded with -a prayer that appellees be enjoined'from further proceeding’with the erection of the building and be compelled to remove the same insofar as it encroached upon Hull Avenue. ■■ The pleadings put in- issue the existence’ of an easement or implied-covenant of right'of -way.-Several deeds were introduced into evidence wherein the land' conveyed was described as bounded by Hull Avénue. Those deeds were not, hoivever, to the land here involved. The description in appellees’ deed does not use Hull Avenue as a boundary. Reference is made therein to a plan of record which was appellants’ Exhibit No. 1. Examination of this exhibit does not show Hull Avenue extending to the Lackawanna River as appellants assert. Brinley Lewis, engineer.for: the Borough’of Olyphant, and a witness for appellants, testified with regard thereto: “Q.'On that niap is Hull Avenue shown? A. Yes, sir. Q. Extending beyond the Westerly corner of Lot No. 1, Block 3, and the Southerly corner, of Lot No.,6, Block.4?. A,.Np., sir.” -There was also credible evidence that because of si-lt.deposits-from the river and dumping -of ashes,- the land in question had extended into the river.' The chancellor found as a fact: “[Appellants’] right of, access to the river is. doubtful because there is no. definite proof by map that Hull Avenue ever extended to the river.” This finding was approved by the court en bane, and, supported as' it is: by1 evidence, has the binding-effect' of a verdict of a jury: Commonwealth *422 ex rel. Department of Justice v. Socony-Vacuum Oil Company, Inc., 352 Pa. 527, 528, 43 A. 2d 98. The foundation of appellants’ requested relief was proof of the existence of an easement by dedication to the public or an implied covenant of right of way created by the use of a street or highway as a boundary or conveyance with relation to a plan: Snyder v. Commonwealth, 353 Pa. 504, 46 A. 2d 247; Transue v. Sell, 105 Pa. 604; McKee v. Perchment, 69 Pa. 342; Robinson v. Myers, 67 Pa. 9; Andreas v. Steigerwalt, 29 Pa. Superior Ct. 1. They relied upon the map as the source thereof, and failed to establish this essential fact by clear evidence. No cogent or persuasive reason exists to warrant implication of an intention to extend the lines shown on the plan. See Miller v. Mackey, 204 Pa. 345, 54 A. 171. The evidence compels a contrary conclusion. Decree affirmed; costs to be paid by appellants.