44 Pa. Super. 138 | Pa. Super. Ct. | 1910
Opinion by
The title under which the plaintiff claims is found in a covenant contained in a deed between L. A. Ensworth and W. C. Bronson of the one part and B. H. Taylor, H. S. Brooks and D. H. Tuthill of the other part, dated January 30, 1858. The words of the covenant are as follows: “And it is further hereby covenanted that the road twenty feet in width on the north side of the platform in front of the saw mills erected on the premises above described; also the road along the northern shore of the head-race, and also the plank or railroad (from the saw mills to the Penna. Canal) along and on the Western bank of the canal and basin erected on the premises aforesaid shall be used, enjoyed and maintained by the parties hereto, their heirs and assigns forever hereafter as perpetual easements over the several purparts which the same may cross.” The parties to this deed were tenants in common of a tract of land with a sawmill and other buildings thereon which property they divided by the deed referred to. The land was divided into two purparts, the first of which was allotted to the first parties and the second, to the second parties to the deed. This action was brought to recover damages for an obstruction to the “plank or railroad (from the saw mill to the Penna. Canal) along and on the Western bank of the canal and basin erected on the premises aforesaid.” Part of this road was on the first and part on the second allot
It is not an answer to the plaintiff’s claim to say that it has used or proposes to use the way in a manner different from that allowed by the deed. The defendant cannot justify an obstruction of the way on any such ground. The remedy for an unauthorized use is by action. There is no pretense that the way has been surrendered by grant or extinguished by adverse possession, nor has any other available defense been introduced sufficient to defeat the plaintiff’s claim. We, therefore, feel bound to reverse the judgment non obstante veredicto entered in favor of the defendant.
The judgment is reversed and judgment is now entered in favor of the plaintiff on the verdict.