dissenting.
I respectfully dissent from the per curiam order affirming the decision of the Commonwealth Court that appellants lacked standing to appeal the approval of a subdivision plan involving a parcel of property in which appellants have an interest, by virtue of a recorded easement, in spring water flowing on the property. Appellants claim that they were entitled to notice of the proposed subdivision in order to assert their rights; however, appellants received no notice of the subdivision proceedings.
The Commonwealth Court held that, pursuant to Michener Appeal, 382 Pa. 401, 115 A.2d 367 (1955), appellants had no right to assert a private interest in a zoning proceeding and, as a result, were not entitled to notice of the proceeding. The Commonwealth Court focused on the Michener court’s statement that “[cjourts in trying a zoning case will ordinarily exclude evidence of private restrictions, and in trying a private restriction case will exclude evidence of zoning. This is done on grounds of immateriality.” Id. at 404, 115 A2d at 370. Since this court’s holding in Michener, courts of this Commonwealth have consistently interpreted that holding to exclude evidence of private restrictions in all zoning cases.
Michener is factually distinguishable from the instant case in that the parties before the court in that case were not the parties who possessed the private right sought to be enforced. The Michener court held that it was error for the trial ■ court to consider deed restrictions in denying a zoning variance. The parties who possessed the right to enforce the deed restrictions were not parties to the action. Here appellants are the parties in interest seeking to enforce their own private right. In addition, Michener did not involve the issue of whether the adjacent landowner was entitled to notice of the zoning proceedings. Therefore, the Commonwealth Court’s reliance on Michener is misplaced.
By failing to give appellant’s notice of the subdivision proceedings, they were denied the right to object based upon the infringement of their water rights. Further, the failure to provide notice allowed appellants’ rights to be adversely affected without providing them with an opportunity to' be heard. In this case, giving notice to appellants would have promoted judicial economy by disposing of both the proposed subdivision plan and the effect of the plan on appellants’ water rights in a single proceeding which may have resulted in an accord being reached that accomplished appellees’ purposes while maintaining appellants’ rights. Because I believe that appellant’s should have been given notice and the opportunity to present their objections in the zoning proceeding, I would reverse.
NEWMAN, J., joins this dissenting statement.