167 Pa. Super. 284 | Pa. Super. Ct. | 1950
Opinion by
The defendant entered into a written agreement with plaintiffs, as owners, for the purchase of a tract of land for a total consideration of $13,800. By the sales agreement, the plaintiffs agreed to convey the land “in fee simple with a good and marketable title, clear of all liens and incumbrances, . . . except as hereinafter specially reserved . . .” The agreement described the premises to be conveyed as “All that certain lot or tract of land with a frame House and frame barn thereon erected located in the Townships of Drumore and Mar-tic in Lane. County, Penna. and situated approximately 2 miles South West of the Buck, on road from Buck to Liberty Square. This property was deeded to Omar M. Graybill and wife by Paul L. Graybill and wife and is known locally as the lower Steinman Farm. This property contains 124 acres, more or less, including Penna. Water and Power Company right-of-way.” The italics indicate the recital in the sales contract which gives rise to the present controversy. A search of the title for the defendant, after execution of the agreement, disclosed that the interest of Pennsylvania Water and Power Company in the land was not an easement of right-of-way merely, but that the Power Company was the owner in fee, under a conveyance from a former owner, of the strip of land containing 12.718 acres, running
At settlement time the defendant refused to pay the full consideration of $13,800 but asserted a right to a reduction of $1,415.39 in the purchase price on the principle of Merritz v. Circelli et ux., 361 Pa. 239, 64 A. 2d 796. This amount is in the same ratio to the full purchase price as the 12.718 acres of land owned by the Pennsylvania Water and Power Company bear to the 124 acres which plaintiffs were to convey under the terms of the agreement. It was thereupon agreed that the sales agreement be submitted to the lower court for construction, in an amicable action on a case stated, to determine whether by its terms plaintiffs were bound to convey 124 acres of land to defendant in fee simple, for $13,800, subject only to the use of the land in question as a right-of-way by the Power Company or, on the other hand, whether defendant was put on notice that the “right-of-way” included in the 124 acres was a strip of land owned by the company in fee simple. Pending a decision by the lower court defendant deposited $1,415.39 in escrow to abide the result. And by agreement, the defendant, after deducting that amount, then paid the plaintiffs the balance of the purchase price of $13,800 and accepted a deed from plaintiffs which contained a reservation of the strip of land in question. The court concluded that the case was ruled against the defendant by the principle of Heppenstall et al. v. O’Donnell, 165 Pa. 434, 30 A. 1003, and accordingly entered judgment in favor of the plaintiff and against the defendant in the sum of $1,415.39 to be paid by the. fund held in escrow for the purpose.
Although the judgment will be affirmed we cannot agree that the Heppenstall case controls the result. By the terms of the articles of agreement in that case
On the other hand we are unable to agree that the present case is ruled by Geyer v. Walton et al., 151 Pa. Superior Ct. 549, 30 A. 2d 643, on which appellant heavily leans in contending for a reversal of the judgment. By the terms of the contract in that case the
The Geyer case is distinguishable from the present case in this important respect. There the contract made no reference to any outstanding interest of a third party in the land to be sold. Accordingly the purchaser was not chargeable with notice of an easement, referred to in an old deed, but could rely on the covenant of the seller to convey free of all encumbrances. Here, on the contrary, the sales agreement refers specifically to an existing right-of-way in the Power Company.
In general a right-of-way is merely an easement (Kieffer v. Imhoff, 26 Pa. 438; Western Pennsylvania Railroad Co. v. Johnston, 59 Pa. 290) though not necessarily so. 37 Words and Phrases 658; Kansas City, M. & O. Ry. Co. v. Littler, 70 Kan. 556, 79 Pac. 114; Nesral Production Co. v. St. Louis, B. & M. Ry. Co.,
- The Power Company’s extensive structural steel towers, several hundred feet high, carrying its transmission lines over the strip of land in question, strongly indicated that its occupancy was by virtue of a grant and, coupled with the reference to the right-of-way in the articles of the agreement, put appellant on inquiry as to the exact nature and extent of the Power Company’s interest in the land, whether a grant in fee or of a less estate. Appellant, under the circumstances was chargeable with notice of what inquiry would have disclosed, namely, that the “right-of-way” referred to in the agreement identified the strip of land owned by the Power Company in fee.
Judgment affirmed.