203 Pa. 386 | Pa. | 1902
Opinion by
This was a bill in equity for an injunction to restrain the defendant from obstructing a right of way, and to prohibit an additional use of a dividing wall between adjoining properties of plaintiffs and defendant.
There is nothing in the evidence to support the defendant’s contention that the right of way is confined to the width of seven feet and six inches. In case of an admitted right of way, Avith no evidence as to the width, it is but reasonable to allow sufficient width to admit of convenient use. In Stevenson v. Stewart, 7 Phila. 293, Judge Allison, citing Salisbury v. Andrews, 19 Pick. 250, says: “ A right to pass over vacant and unoccupied land, Avhere no way actually exists or is used, would be the grant of a convenient way, the direction and width of which would be determined by various circumstances.”
A similar rule Avould apply Avhere the right of way granted is of an undefined width. In Walker v. Pierce, 38 Vt. 94, it was ruled that the true limit of the grant was a space reasonably convenient for the purpose for which it was granted.
It is said in Miller v. Lynch, 149 Pa. 460, that to stay the arm of a chancellor, it is not enough for the defendant to deny the plaintiff’s right; his denial must be based upon facts which show a substantial dispute. So when, as here, a right of way of indefinite width is claimed, the defendant cannot defeat the jurisdiction of equity by an answer which admits the right, but limits it to a width insufficient for convenient use, especially when this limitation is not supported by testimony.
The trial court finds as a matter of fact, in answer to plaintiffs’ second request, that “ complainants have been the owners with those under whom they claim, since October, 1859, of the premises referred to in the first paragraph of complainants’ bill, and have had the right of way through an alleyway, commencing at the southerly side of Mahantongo street, and extending forty feet in a southerly direction, and eleven feet
There was ample evidence to justify this finding. The admission in the third paragraph of defendant’s answer would of itself have been sufficient, had it not been for the limitation there placed upon the width of the right of way. In addition to this, it appears from the evidence that a certain deed in the plaintiffs’ chain of title from John Hughes to Bright and Lerch, dated Jrdy 1, 1859, was not recorded, and was subsequently rendered illegible by fire, and was lost. But the fact that this deed was made, appears from the deed by the same John Hughes which conveyed defendant’s lot. And it is also admitted that the plaintiffs and their predecessors in title have been in possession ever since.
On July 1, 1859, which was the date of the recited deed from Hughes to Bright and Lerch, they made a mortgage of the same premises to Barcroft, from which it appears that they claimed to have a title on the day the deed is recited to have been made to them. This mortgage contains the words, “ with a right of entrance to the same from Mahantongo street.”
On October 31, 1859, George Lerch conveyed his interest in said lots to George Bright. This deed contains a recital that the premises are the same which, “ with the appurtenances, consisting of two three story brick stores, at present occupied by Bright and Lerch, with the right of entrance to the same from Mahantongo street in said borough, John Hughes and wife .... by their indenture, dated the first day of July, 1859, granted and conveyed to George Bright and George Lerch,” etc.
This mortgage and deed were admitted in evidence against the objections of the defendant, and form the subject of the first four assignments of error. We think, however, that the recital in the deed of George Lerch to George Bright dated October 31, 1859, above quoted, taken in connection with the
And in 19 Am. & Eng. Ency. of Law (2d ed.), 576, it is said: “ While the fact of the former existence of the instrument must be clearly proved, direct evidence is not required in all cases, but the proof may be made by showing facts and circumstances from which the existence of the instrument may be inferred.”
To the same effect is Dorff v. Schmunk, 197 Pa. 298, and the case of Garwood v. Dennis, 4 Binney, 314, therein cited. That there was a deed in existence conveying the lot to Bright and Lerch is not disputed. The deeds in defendant’s chain of title recite the fact that this lot which plaintiffs occupy was conveyed to Bright and Lerch. The injury to the deed by fire in 1861 is shown by the testimony of Joseph C. Bright. That diligent and thorough search was made for the deed, and that it could not be found is shown by the testimony of George L. Bright. The evidence shows acts of the respective owners of both plaintiffs’ and defendant’s lots recognizing plaintiffs’ right to enter from Mahantongo street. One of the most important of these is the closing of another alley from Centre street, running along the north side of plaintiffs’ lot. The existence of this alley is admitted by all, and is recited in tbe deed of Hughes conveying the defendant’s lot to Matz in these words, “ thence eastwardly along said ground (lately bought by Bright and Lerch). at right angles with Centre street eighty-five feet, passing along the south wall of an arched alley to the w.estwardly side of Centre street.”
This recital shows that when plaintiffs’ predecessors bought this lot it was bounded by this alley. Evidently it could not be closed without the consent of Bright and Lerch unless the right to close it was somewhere reserved. No such reservation is shown in any of the deeds in evidence, therefore if re. served at all, it must have been in the lost deed. But the deed of Lerch to Bright for plaintiffs’ lot recited with reference to the lost deed, that it reserved “ for themselves (owners of de
With regard to closing the alley, it is stated by a witness, J. C. Bright, that there “ was a question whether they had a right to close it, and I think Jesse Drmnheller was owner at that time, and he closed it and we made no objection, because our rights were definitely ascertained to be through Mahantongo street, and we rested on that, and made no objection to his closing it and putting the barber shop there, and so after that we always used Mahantongo street entrance every day or so, almost every day.”
This recital as to the reservation of the right to close the alley made in the deed from Lerch to Bright was against the interest of both of them. It was made only four months after the deed recited was made, while it was in existence, in their chain of title, and it cannot be supposed that it falsely admitted a right to close the alley along the North side of their lot, which was the only means of access to the rear.
Another strong circumstance is the use by the plaintiffs of the alley from Mahantongo street as a right of way for so many years. The fact of the use is not only thoroughly established by the testimony, but it is also shown that this use was under a claim of right.
We think, therefore, that the evidence would have justified a finding that the deed of Hughes to Bright and Lerch, dated July 1, 1859, contained an express grant of the right of way. And that therefore all objections to the acquirement of a right of way based upon the shifting course taken by plaintiffs’ teams in passing over the ground, would be without force. Such objections are of weight only where it is sought to establish a right of way by a presumption of a grant arising from adverse use.
The court below was justified in its location of the right of way and its width. The location is dictated by a due regard for the convenience of both parties, and its seems reasonable that the width should be the same as the width of the alle}1- at the point of its entrance from Mahantongo street, namely, eleven feet, seven inches.
In the second clause of the decree, the court has inadvertently used language which may mislead, in that it decrees that
It is manifest under the view taken by the court that the passageway should extend far enough south to enable the plaintiffs to reach their property, with their teams, by driving over the passageway defined by the court, in a manner that would cause the least inconvenience to the defendant.
The disposition of the costs in this case was within the power of the chancellor, and we see no reason to doubt that his discretion was properly exercised.
This appeal is dismissed at the cost of the appellant. In so far as tbe questions herein raised are concerned, the decree of the court below is affirmed, when verbally modified in the second paragraph thereof as suggested in this opinion.