129 A. 83 | Pa. | 1925
Argued March 24, 1925. Carter, the owner of land located in the Borough of Indiana, laid it out in lots in 1870. We are concerned in the present case with numbers 13 and 14, which abutted on Water Street, located opposite the yards of the Pennsylvania Railroad Company. To the north, and separated by an alley, were tracts 16 and 17. In the conveyance to one Fiscus for the property in front, provision was made for a siding to be used by all interested, six feet being reserved for this purpose from the two pieces of land first named. In the deed executed, he directed that there should be reserved and excepted "a right-of-way along the boundary line between lots Nos. 13 and 14, above described, twelve feet in width, being six feet off the eastern side of lot No. 14, and six feet off the western side of lot No. 13, for the construction and operation of a certain railway track, to connect with the track of the Pennsylvania Railroad Company, running throughout the whole length of said lots Nos. 13 and 14, communicating with the lots and land lying north of the same, together with the right to the free and uninterrupted use and enjoyment of the said railway by himself, or any other person or persons whomsoever having authority under the said James P. Carter, *253 his heirs or assigns, to use the same, to run cars, trucks, engines or any other species of conveyance over the same, without let or hindrance forever." The right-of-way was reserved by James P. Carter, his heirs and assigns forever. In the deed for the lots to the north of the alley, one of which is now owned by the defendant, it was set forth as follows: "Whereas, also a certain railway track has been located and built on the line between lots Nos. 16 and 17, which said railway was constructed for the benefit" of the grantor and others who might acquire interest as a result of conveyances, "the aforesaid railway shall not be interferred with nor obstructed, removed, or in any way injured, but the same shall remain open and free to such as might have the right of passage over the same, with locomotive engines, cars, trucks, etc., and the right-of-way of said railway is hereby reserved to him, the said James P. Carter, his heirs and assigns forever."
The siding was built and actually used for more than thirty years by the lot owners, whenever necessity required. Later, the defendant, Lewis, became the owner of the lots purchased by Fiscus from Carter, and, in 1919, obtained a conveyance from the only heir of the former owner of any rights he might have in the twelve-foot right-of-way. Thereupon, he erected a gate across the track, and when this was removed, installed another obstruction, fastening it with chains and lock. As a result, the present bill was filed, praying that further interference with the use of the siding be restrained. A preliminary injunction was granted, later made permanent after full hearing, and it is from this decree we have the present appeal.
The facts as stated, based on ample testimony, were found substantially as narrated above. Though many assignments of error have been filed, the real questions involved are but two. Was the provision for the right-of-way a reservation for the benefit of the purchasers of lots on the Carter plan, or was it the intent of the *254 grantor to except this strip when he deeded it to Fiscus? Further, is the plaintiff entitled to an injunction without securing a preliminary determination as to his title in an action at law? The learned court below held also a right by prescription had been acquired by the continuous use of the siding for more than thirty years by all of the interested lot-holders, but a discussion of this proposition is unnecessary, as we view the facts justifiably found.
Did Carter, by his deed in 1870, make a reservation of the strip in question for the benefit of those to whom the lots were to be sold? "A reservation is the creation of a right or interest which had no prior existence as such in a thing or part of a thing granted. It is distinguished from an exception in that it is a new right or interest. An exception is always of part of the thing granted, it is of the whole of the part excepted. A reservation may be of a right or interest in the particular part which it affects. These terms are often used in the same sense, the technical distinction being disregarded": Kister v. Reeser,
It is further suggested that the question of title should have first been determined in an action at law, before an equity court was asked to intervene. Where there is a substantial dispute as to relative rights of the parties, this principle will undoubtedly be invoked: Rhea v. Forsyth,
It follows from what has been said that the assignments of error should be overruled.
The decree is affirmed at the cost of appellant.