Cherry v. Harrison

55 Pa. D. & C.2d 230, 1971 Pa. Dist. & Cnty. Dec. LEXIS 200
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedJuly 15, 1971
Docketno. 2997
StatusPublished

This text of 55 Pa. D. & C.2d 230 (Cherry v. Harrison) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cherry v. Harrison, 55 Pa. D. & C.2d 230, 1971 Pa. Dist. & Cnty. Dec. LEXIS 200 (Pa. Super. Ct. 1971).

Opinion

McLEAN, J.,

The principal issues in this equity suit between adjoining landowners are whether plaintiffs had acquired a license to use a portion of the property owned by defendants for a water service line, and whether the court should enjoin defendants Harrison from interfering with the laying of a water service line by plaintiffs in a right-of-way granted by deed over property of defendants Harrison. There are also issues as to whether plaintiffs should be awarded compensatory and punitive damages.

Almost all of the facts of the case are undisputed. A trial was held on July 13, 1971, and, as authorized by Pennsylvania Rule of Civil Procedure 1517, the court finds the facts of the case to be as hereinafter set forth in narrative form.

[231]*231The parties own adjoining parcels of real estate located in Forward Township, Allegheny County. Defendants Harrison acquired a large tract of land in 1955, and by deed dated December 1,1961, of record in the Recorder’s Office of Allegheny County, in Deed Book Vol. 3962, page 13, conveyed to plaintiffs a portion of said tract, the portion conveyed being one-half acre in area. The portion conveyed to plaintiffs had a home erected on it into which plaintiffs moved about two months prior to the date of the deed, plaintiffs paying defendants two months’ rent, until the December 1, 1961, closing of the sale. Defendants, then and now, reside on the premises purchased in 1955, and are thus next-door neighbors to plaintiffs.

When plaintiffs took up residence in the subject property, their water supply came from a cistern on the property, there being no public water distribution system available at the time. Plaintiffs’ property fronts on State Highway 905, but the lot sits well above the highway, there being about a 50-foot drop to the highway from plaintiffs’ boundary line abutting the highway. This topography necessitates plaintiff's gaining access to their property by passing over and through the property retained by defendants, and from the time of plaintiffs’ moving into the property in 1961, plaintiffs have had ingress and egress to their property by passage over a well-defined driveway on the land retained by defendants. There is no issue in this case concerning the rights of plaintiffs to continue to have ingress and egress in this fashion.

The deed from defendants to plaintiffs included an express provision which provides as follows:

“ALSO granting and conveying to the Grantees herein, their heirs and assigns, a right of way 15 feet in width from the cement block building erected upon the above described premises to State Highway Route 905 as is more particularly shown on the survey made [232]*232by Alexander L. McVicker on August 2, 1955 and described as follows:
“BEGINNING at a point near the center of the cistern located near the cement block dwelling aforesaid; thence South 30° 00' West, 175 feet; thence South 79° 49' West, 150 feet to a point on the easterly line of the State Highway Route 905, the above two courses and distances being the center line of the 15 foot right of way.
“IT IS EXPRESSLY AGREED AND UNDERSTOOD however, that the owners of the land over which this easement is granted shall have the right to use the said right of way together with the grantees, their heirs and assigns.”

The parties apparently lived in harmony for several years. Several years after plaintiffs moved in, defendant municipal authority extended its water distribution system into the area in which plaintiffs and the Harrisons lived, and offered its water to said parties. The authority’s water main was laid along Route 905 to the driveway serving the Harrison residence. The Harrisons availed themselves of the authority’s water, but at that time plaintiffs declined, since the cistern and its system were providing an adequate water supply to plaintiffs. However, in about 1965 the cistern developed a leak, with the result that plaintiffs had to purchase and carry water. Therefore, they determined that it would be desirable to tap into the authority’s water distribution system.

In early March or so of 1966, plaintiffs visited defendants Harrison in the Harrison home and discussed with the Harrisons the matter of plaintiffs laying a water service line through the deeded right-of-way so that plaintiffs might tap into the authority’s water main along Route 905. The Harrisons suggested that plaintiffs lay the service line, not in the deeded [233]*233right-of-way, but rather in a shorter route, a straight line diagonally across a portion of the Harrison property. This was proposed by the Harrisons on the basis that it would be less expensive for plaintiffs, since the line would be shorter, and there would be an advantage to the Harrisons in that it would avoid a possible disruption of sewer lines and septic systems that the Harrisons had previously installed. It was further agreed at this meeting that Mr. Harrison would show plaintiffs just where the water service line should be laid.

Shortly later, on March 11, 1966, plaintiffs paid $200 to defendant authority as a tap-in fee. Following that payment, defendant, Mr. Harrison, showed the husband-plaintiff and one Repasky the specific location in which the service line should be placed, and the work began. Repasky, using appropriate equipment, dug a ditch in the location specified by Mr. Harrison, and the husband-plaintiff and his brother assisted in the physical work of laying the water service line. Plaintiffs paid Repasky $60 for his services, and in addition spent $242.71 for materials in laying the line. Plaintiffs further expended the work and time of the husband-plaintiff and his brother in making the installation.

During almost all of the work of installation, Mr. Harrison was away from home on vacation, but Mrs. Harrison remained in residence at home and without objection observed the installation as it progressed over several days.

For approximately four years, plaintiffs enjoyed the use of the water service line without any objection, or even comment, from the Harrisons. Then in 1970, the Harrisons determined that they wished to use for the installation of one or more mobile homes that portion of their property through which plaintiffs’ water [234]*234line had been laid. Accordingly, they retained an attorney to notify plaintiffs to remove the water line. This notice was by letter of an attorney dated May 2, 1970.

Plaintiffs offered to relocate the water line into the deeded right-of-way, but defendants refused to permit that. Subsequently, plaintiffs received a copy of a letter dated June 29, 1970, from the solicitor of defendant authority to the authority engineer advising that the Harrisons disputed the right of plaintiffs to continue the presence of their water service line across the Harrison property and advising that Mr. Harrison planned to tear out the line. Then, on July 14,1970, Mr. Harrison appeared at the regular monthly meeting of the water authority to advise the authority of his immediate intention to break plaintiffs’ water service line on his property. Mr. Harrison agreed, however, to give the authority 24 hours so that it might have an opportunity to shut off plaintiffs’ water at the main, to protect against the loss of water to the authority and other customers being served by the authority.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Chambers v. Montgomery
192 A.2d 355 (Supreme Court of Pennsylvania, 1963)
Moyerman v. Glanzberg
138 A.2d 681 (Supreme Court of Pennsylvania, 1958)
EDWARDS Et Ux. v. Julian
159 A.2d 547 (Superior Court of Pennsylvania, 1960)
Taylor v. Heffner
58 A.2d 450 (Supreme Court of Pennsylvania, 1948)
Clements v. Sannuti Et Ux.
51 A.2d 697 (Supreme Court of Pennsylvania, 1946)
Hughes v. Babcock
37 A.2d 551 (Supreme Court of Pennsylvania, 1944)
Dyba Et Ux. v. Borowitz
7 A.2d 500 (Superior Court of Pennsylvania, 1939)
Eble v. Jones
44 A.2d 761 (Superior Court of Pennsylvania, 1945)
Huff v. McCauley
53 Pa. 206 (Supreme Court of Pennsylvania, 1866)
Big Mountain Improvement Co.'s Appeal
54 Pa. 361 (Supreme Court of Pennsylvania, 1867)
Dark v. Johnston
55 Pa. 164 (Supreme Court of Pennsylvania, 1867)
Thompson v. McElarney
82 Pa. 174 (Supreme Court of Pennsylvania, 1876)
Cole v. Ellwood Power Co.
65 A. 678 (Supreme Court of Pennsylvania, 1907)
Mercantile Library Co. v. Fidelity Trust Co.
83 A. 592 (Supreme Court of Pennsylvania, 1912)
Bishop v. Buckley
33 Pa. Super. 123 (Superior Court of Pennsylvania, 1907)
Borens v. Krywoshyja
184 A.2d 378 (Superior Court of Pennsylvania, 1962)

Cite This Page — Counsel Stack

Bluebook (online)
55 Pa. D. & C.2d 230, 1971 Pa. Dist. & Cnty. Dec. LEXIS 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherry-v-harrison-pactcomplallegh-1971.