Stewart v. Watkins

235 A.2d 604, 427 Pa. 557, 1967 Pa. LEXIS 520

• Court: Supreme Court of Pennsylvania
• Decided: November 28, 1967
• Docket: Appeal, 116
• Status: Published

Opinions

Opinion by

Mr. Justice O’Brien,

Appellants commenced an action in equity seeking to enjoin appellees from entering upon appellants’ land and performing work on a road situated on that land. A preliminary injunction was granted but, after hearing, the injunction was dissolved and appellants were enjoined from interfering with appellees’ lawful repairs and services to the road in question. Appellants’ exceptions to the chancellor’s decree nisi were dismissed and a final decree entered affirming the result reached by the chancellor; this appeal followed.

The question before us is narrow: “Was there sufficient evidence from which the chancellor could find that the road in question was a township (public) road?” It requires no citation of authority for the oft-repeated proposition that the findings of the chancellor, approved by the court en banc, have the same status as a jury’s verdict, if they are supported by adequate evidence and ordinarily will'not be disturbed on appeal.

Three methods exist for establishing the existence of a township road. The first is the introduction of court records showing the road to have been opened under the Act of June 13, 1836, P. L. 551, 36 P.S. §1781 et seq. The second is that provided in The Second Class Township Code of May 1, 1933, P. L. 103, §1105, 53 P.S. §66105, setting forth the circumstances under which there arises a conclusive presumption that a road is public. The third is by prescription, requiring uniform, adverse, continuous use of the road under claim of right by the public for twenty-one years. Appellees make no claim that the road in question is a township road other than by the second method, The Second Class Township Code.

That Code provides, in §1105: “Every road not of record which has been used for public travel and maintained and kept in repair by the expenditure of township funds for a period of at least twenty-one years and upwards shall be deemed to be a public road of the width of at least thirty-three feet notwithstanding the fact that there is no public record of the laying out of such road or a dedication thereof for public use. In all such cases the lawful laying out and opening or dedication of such roads of the width hereinbefore specified shall be conclusively presumed.” We hold that there is evidence from which the chancellor could properly have found that the requirements imposed by this statute have been met, and that the road in question is a township road. We might note that the parties did little to simplify our task in the review of the evidence, having furnished us with maps in the record and briefs which are virtually unintelligible.

The statute requires two things, carried on for twenty-one years — public travel, and maintenance and repair by the expenditure of county funds. There is testimony from plaintiff, Frank L. Stewart, Jr., that the residents at the end of the road ran at one time or another a dairy farm and a riding academy. A proper inference from this is public use. A user of the road, William L. Beitler, testified that he never asked permission to use the road, and plaintiff, Frank L. Stew-¿rt, admitted that a number of people traveled on the road without asking his permission. Thus, a finding of public travel was perfectly proper.

So too was the finding of maintenance and repair by the expenditure of county funds. There was testimony of oilings (since 1960) and plowing of snow in the winter of 1954-55. While this is not twenty-one years, several persons testified that repairs were made when necessary. On a small country road, it is entirely possible that the need for repairs Is infrequent. Furthermore, appellees have introduced maps dating back to 1900, showing the road as a township road. State fuel tax funds have been paid to the Township of Unity for the maintenance of this road since 1933. While in themselves, the maps and payment of funds would be entitled to little weight, they serve to confirm the findings of the chancellor, supported by other evidence.

Decree affirmed, each party to bear own costs.