3 Pa. Super. 176 | Pa. Super. Ct. | 1896
Opinion by
The plaintiff below, who is the appellant here, claimed by prescription an easement in, being the right of way over, the tenement of the appellee. It is not claimed that there was any express grant. The evidence as to the prescriptive right to the easement or right of way is not strong but we do not understand it to have been seriously controverted in the court below. The plaintiff was, therefore, entitled to the enjoyment of such an easement as had been acquired by him and Ins predecessors in title by prescription. There is evidence as to what the character of the right of way was. There was apparent necessity by the owner of the servient tenement, who was the defendant below, to use bars at the entrance to the so-called lane, through and over which the. plaintiff claimed a right to pass, so as to restrain his cattle whenever necessary, and there is evidence produced both by the plaintiff and the defendant that posts and bars were maintained for that purpose. Sometimes the bars were kept closed. At other times they were removed and the way left open, but it cannot be doubted that the defendant and those under whom he claimed used the bars whenever it became necessary for him to do so for his own convenience and protection. The present defendant erected a swinging gate at the point at which the posts and bars had been previously erected and maintained. In the trial of the case in the court below,
In regard to the gate, the court below charged the jury as follows: “ The right of way, however, is a right of passage ordinarily, and ordinarily the property over which this right of way goes belongs to the owner of the soil who can make any use of it that is consistent with the enjoyment of the right of way by the other party. He has a perfect right to put up swinging gates or movable bars, provided that they are not an unreasonable obstruction to the enjoyment of this party’s right of way ovér his property. In ordinary cases swinging gates and movable bars across roads that are used in the manner in which this one appears to have been used are not obstructions of an unreasonable character. They are not ordinarily unreasonable interferences with the right of the passage and I say to you, gentlemen, that there is nothing in the evidence of this case which would justify you in finding that in this instance an exception to the rule has been shown, to wit, that the gates or bars in this case are an unreasonable interference; therefore, as far as that item of the plaintiff’s complaint goes, there can be no recovery on his part.” The appellant assigns this part of the charge of the court as error.
The question as to whether or not the stones placed in the lane near the creek were or were not an obstruction was left to the jury and their verdict was for the defendant.
Mr. Washburn, in his treatise on the American Law of Easements and Servitudes, third edition, 1873, page 264, says: “It seems to be now settled that, if the landowner is not restrained by the terms of the grant of a right of way across his lands for agricultural purposes, he may maintain fences across such way,' if provided with suitable bars or gates for the convenience of the owner of the way. He is not obliged to leave it as an open way nor to provide swinging gates, if a reasonably convenient mode of passage is furnished.” The same principle was practically decided in Pennsylvania in Hartman v. Fick, 167 Pa. 18, in which a reference is made to Connery v. Brooke, 73 Pa. 80. In the latter case, Mr. Justice Williams, in delivering
