237 Pa. 533 | Pa. | 1912
Opinion by
This was a bill in equity filed by the plaintiffs to re- . strain the defendants from obstructing them in the use
The assignments of error are defective in that the final decree is not assigned for error: Yerger v. Hunn, 231 Pa. 245; Standard Soap & Oil Co. v. Degreasing Co., 232 Pa. 64; Condron v. Penna. R. R. Co., 233 Pa. 197. But as the first assignment alleged error in overruling defendant’s exception to the decree recommended by the trial judge, which was subsequently entered as final, it may be treated as in effect assigning the final decree as error. The authorities establish the proposition that a right of way expressed in general terms is to be construed to include any reasonable use to which it may be put. Thus in Jones on Easements (1898) §375, it is said: “A right of way granted or reserved in general terms may be used for any purpose reasonably necessary for the party entitled to use it. The fact that the
In the present case the original grant was general in its terms. It gave “a right and privilege to the alley or gateway between the said house and my dwelling house,” and this language is repeated several times, in substance. A reasonable construction of this wording would permit the use of the alley for the passage of horses and vehicles, as well as for foot passengers. The agreement of 1885 made no change in this respect, for it stipulated that the alley “should be used and remain as heretofore,” except as set forth in the agreement. In case of doubt, the contemporaneous construction placed upon the contract by the parties is to be adopted, and the application of this principle sustains the view taken by the court below, for it appears from the findings of fact that before the agreement of 1885, the owners of both properties used the alley, not' only for walking upon the same, but also for driving in with horses and wagons, as often as they had occasion so to do, and “since 1885, the said alley has been used by the plaintiffs and their predecessors in title as a passageway for foot passengers, and for horses, carriages and wagons, to and from their said premises, and that merchandise of various kinds has been delivered to the plaintiffs’ said premises by wagons passing in and out of said alley.”
The assignments of error.are overruled, and the decree of the court below is affirmed.