89 Pa. 346 | Pa. | 1879
delivered the opinion of the court, May 7th 1879.
The plaintiff below is the owner of a tract of three and a quarter acres of land on the river Delaware, in Bucks county, a few miles below Bristol. He is also the owner of certain rights of fishery appurtenant to said land. The defendant owns the tract adjoining on the east, and in the year 1870 built a wharf in front of his land, extending out into the river over one hundred feet below low-water mark. The plaintiff contends that this wharf obstructs his right of fishing, and brought this action in the court below to recover damages therefor.
No servitude upon the land of the defendant appears in his line of title. No reference to it is found in his own deed or in the mesne conveyances from Amos Wilson. By ascending the stream of title, however, until he reached John Paxson and Levi D. Vandegrift, under whom both parties derive title, he would have ascertained that when they conveyed to Charles Tyson the fourteen-acre tract known as “Dunk’s Ferry,” they included the fishery in controversy, by the following description: “ Together with all our right and privilege of the fishery as it has heretofore been conducted, and landing the ferry-boats on the bank of the said river to the distance of twenty-eight perches down the same below the place of beginning.” This fourteen-acre tract had a river front of about five hundred and fifty feet, but only extended fifteen feet below high-water mark. Tyson conveyed three and a quarter acres of said tract to John Vandegrift, including the entire front between low-water mark and fifteen feet below high-water mark. The deed from Tyson to Vandegrift contained the following in reference to the fishery : “ Together with all the right of the said Charles Tyson in the fishery and the privileges thereto belonging, as it has heretofore been conducted, also the privilege of landing the ferryboats on the bank of the said river to the distance of twenty-eight perches down the same, below the place of beginning,” &c.
Assuming that the defendant was affected with notice of the.grant of the fishery as set forth above, we are led to consider the extent of said grant. Just here the difficulty in the case arises. There is nothing in the language employed that in terms imposes any servitude upon the land of the defendant. The court below admitted parol evidence to show the extent of the fishery. Against the objection of the defendant witnesses were permitted to testify that the shore in front of defendant’s land, and for a considerable distance beyond the pier, had been used by the plaintiff and his predecessors in the fishery, for hauling the seines and other purposes connected with said fishery. The admission of this evidence was not assigned for error, and whatever our view of its competency may be, the court below cannot be convicted of error in admitting it. But by the defendant’s first point the learned judge was called upon to construe the language of the deed containing the grant of the fishery,.and-to define the extent thereof as a question of law. This he declined to do, and instructed the jury that “ the grant in the deed is of ‘ our right and privilege of the fishery as it has heretofore been conducted,’ and it is granted as an appurtenance to the land conveyed. Parol evidence has properly been received to show', how the fishery had previously been conducted, and it is for your consideration in determining the extent of the previous use of the defendant’s land for the purposes of the fishery.” The effect of this point was to withdraw from the consideration of the jury the parol evidence which had been previously admitted in regard to the extent of the fishery. It was the equivalent of a motion to strike it out. The correctness of the answer of the court must be measured, therefore, by the competency of the evidence referred to.
It is undoubtedly true that where the subject-matter of a grant is insufficiently described in a deed, parol evidence may be given to show precisely what was intended to be conveyed. It is said in Stark, on Evidence 692, that “in general, when there is any doubt as to the extent of the subject-matter devised by will, or der mised or sold, it is a matter of extrinsic evidence to show w’hat is included under the description as parcel of it.” The same principle is ruled in Scott v. Sheakly, 3 Watts 50, and Hoffman v. Danner, 2 Harris 25. And in such case it is well decided that the question of the extent of the grant must go to the jury. But was there
We are of opinion that there was no such ambiguity in the grant of the fishery as required extrinsic evidence of its extent; that in view of the defendant’s first point, it was the duty of the court to declare the proper construction of the grant as a matter of law; and that the grant of said fishery to the plaintiff was not notice, either actual or constructive, to the defendant, that the fishery extended up to and beyond his pier. This sustains the first, second, ninth, tenth and twelfth assignments of error. Those that remain need not be discussed.
Judgment reversed.