224 Pa. 573 | Pa. | 1909
The plaintiffs are the owners of property No. 609 South street, Philadelphia, and the defendant is the owner of the adjoining property to-the west, No. 611. The prayer of the bill
The grant to the plaintiffs ’ predecessor in title in 1810 gave him an easement in the following language: “Together with the free use and privilege of the said alley for free ingress .... in common with the owners, tenants and occupiers of the adjoining lot to the westward and of. a water course therein, reserving to the owner of said adjoining lot to the westward the right of building over the said alley at the same height and of the same depth as the same is now built over. . . .” In a deed of the same date in the defendant’s chain of title it is recited that a former owner had left open the easternmost two feet and eleven inches of his lot as an alleyway for the common use of his lot and the adjoining lot to the eastward, and there was excepted and reserved out of the grant to and for the use of the owners of the adjoining lot to the eastward the free use of the alley, the grantee to have the right and privilege of building over the alley of the depth of the building then erected.
It is not controverted that the owner of land who grants a right of way over it conveys nothing but the right of passage and reserves all the other incidents of ownership, and may build over the way provided he does not materially impair the use of the easement by obstructing the way and shutting
The grant of a fee subject to an easement carries with it the right to make any use of the servient soil that does not interfere with the easement, and this right cannot be abridged by words used in the granting clause unless the intention to limit the estate is clearly expressed or is a necessary implication from the words used. A restriction cannot be imposed upon a clear grant by merely naming one of its incidents. The rule that a deed or grant will be construed most strongly against the grantor applies with especial force to the restriction in a deed: Klaer v. Ridgway, 86 Pa. 529.
The judgment is affirmed.