54 Pa. Super. 500 | Pa. Super. Ct. | 1913
Opinion by
As the case is now presented it seems to be well established that the road for which the plaintiffs are contending has been in existence for at least sixty-five years. It was visible to the eye and in use by all whom business or pleasure took that way. A part of it was fenced; trees were growing on each side of another part; a schoolhouse was located and in use on it and it was well defined on the ground. All of this appears in the fifth finding of fact as to which there is no assignment of error. The testimony of many witnesses supports this finding. It is equally well established that the title of Christian Lieberum, one of the appellants, does not cover the land on which the road is located. The deed from George Thomas to Peter Butler which is a link
The evidence does not disclose such a state of facts as required the court to hold that the plaintiffs’ cause was defeated by laches. The house was built several years before the bill was filed, but the court has found on sufficient evidence that a substitute was provided, travelers being permitted to pass around the house on an adequate road. It was only when the way was blocked for teams and the school children prevented from passing to and fro that the substantial injury to the complainants arose. The defendant has not shown that he was misled to his injury, that he was deceived by the conduct of the complainants or that any fraud was practiced. He could have learned from the deed which he held that the strip of land used for a road did not belong to him and we do not find anything in the conduct of the plaintiffs which was an inducement to him to locate a part of his house in the road. It would seem that the plaintiffs were willing to accept a substituted way around the house instead of insisting on
The decree is affirmed at the cost of the appellants.