179 Pa. 290 | Pa. | 1897
Opinion by
There is practically no controversy as to any of the material facts in this case. On March 12, 1892, by written agreement, plaintiff leased to defendant company, for one year from July 1, 1892, “ all that portion of Eagle Rolling Mill ” described therein, for the yearly rent of $6,000 payable monthly, etc.
Prior to date of said lease, tbe rolling mill had been occupied by the Oliver Iron & Steel Company under lease from plaintiff which expired on July 1, 1892. By and with the consent of their lessor, that company had sublet part of said property to the defendant company, and it had entered upon the demised premises, and was in possession thereof prior to March 12,1892, and continued in possession until July 1, 1893, the expiration ■of the first mentioned lease. This suit was brought to recover ■the one year’s rent due under that lease. The defense was •eviction by the Pittsburg, Cincinnati, Chicago & St. Louis
The facts of which this instruction is predicated are not controverted ; nor does the record disclose a single disputed fact that was material to the defense, and should have been submitted to the jury. The only question is whether the learned trial judge erred in directing a verdict for plaintiff, and in refusing both of the defendant’s points above quoted. We are all of opinion that he did not.
The railroad bridge or viaduct referred to by the court below was erected prior to 1865, and, having been destroyed by fire, was rebuilt in 1885. From the date of its original construction until the present time it has stood on same abutments, etc. The right of way for that part of the railroad, etc., was acquired by condemnation proceedings in the district court of Allegheny county, at No. 115, July term, 1855, in connection with the
The perpetual servitude thus imposed upon a portion of the rolling mill property with all its incidental rights of maintenance, repair, reconstruction, etc., pertaining thereto, has been continuous, open and manifest to all who had anything to do with the property; and its effect on the servient property must have been contemplated by both lessor and lessee when the lease in question was executed. With this bridge or viaduct — ■ constituting a section of the railroad — there upon the ground, the defendant went into possession as the subtenant of the Oliver Iron & Steel Company, and afterwards took the new lease from the plaintiff. It cannot be doubted that the defendant was fully aware of the open and visible servitude to which the demised property then was and would continue to be subject while in its possession as lessee.
It is well settled that where a continuous and apparent easement or servitude is imposed upon land, a purchaser of the servient property in the absence of an express reservation or agreement on the subject takes the property subject to the easement or servitude: Cannon v. Boyd, 73 Pa. 179; Geible v. Smith, 146 Pa. 276; Ormsby v. Pinkerton, 159 Pa. 458. This principle is not restricted to cases between the owner of the servient and the owner of the dominant property: Eby v. Elder, 122 Pa. 342. In that case the defense interposed to a purchase
In Memmert v. McKeen, 112 Pa. 815, the incumbrance that was claimed to be a breach of the implied covenant, etc., consisted of stone steps,, belonging to the adjoining house, but so constructed as to occupy a portion of the sidewalk in front of plaintiff’s house. Both houses formerly belonged to the defendant, who in 1865 sold the one to which the steps were appurtenant, and in December of the following year, sold the other to the plaintiff. The steps were then in existence plainly visible to the eye, and a servitude upon the property. ■ After examining the house plaintiff’s husband, as her agent, bought it, and therefore took it with his eyes open to the servitude. It was held, in substance, that the servitude was not an incumbrance within the meaning of the implied covenant; that assuming the steps to be an injury to plaintiff’s property, the presumption was that such injury was in contemplation of 'the parties, and that the price was regulated accordingly. In the language of the court, the servitude “ was a physical condition of the property, notorious in its character, and affecting its value; and under all the authorities we must presume the price to have been fixed with reference to it.”
Other authorities to the same effect might be cited, but those above referred to are sufficient. The soundness of the underlying principle therein recognized cannot be questioned; nor is there any valid reason why the same principle should not be applied in cases between lessor and lessee, where it is clearly shown that the latter was fully aware of the fact that the demised premises or part thereof was subject to an open, notorious and permanent servitude or easement such as the railway viaduct, etc., in this case. In such cases, unless something to the contrary appears, it is fair to assume that the parties contracted with reference to the then existing condition of the premises, and that the lease was made and accepted subject to the railway company’s right of way over some of the buildings com
It is unnecessary to consider the plaintiff’s further answer to the defense against the payment of rent, viz: “ that there was no eviction in this case.” It follows from what has been said that there was no error in directing the jury to find for the plaintiff for the full amount of his claim. The authorities mainly relied on by the learned counsel for defendant are inapplicable to the undisputed facts of this case.
Judgment affirmed.