69 Pa. 342 | Pa. | 1871
The opinion of the court was delivered, October 16th 1871, by
The alley, which was the subject of controversy in this action, was laid out originally by David Aiken through the centre of two large lots which he owned, lying between the Greensburg and Pittsburg Turnpike Road and Shakespeare
The 3d assignment complains of the answer of the learned judge below to the defendant’s 4th point, that if the grantor of the plaintiff stood by and saw the defendant erect a stable and other improvements on the site of the alley, he and the plaintiff claiming under him would be estopped from setting up any title to the easement. This the learned judge affirmed, with the qualification that there was no agreement or understanding between the several persons entitled to the privilege of the alley that erections of such a character might be made temporarily without prejudice to the right of any of those in whom the easement was vested to require the opening of it at some future day whenever it might become desirable. This is the proper interpretation of the language of the answer, and was a correct and necessary qualification of the point in view of the evidence which had been given in the cause by both the plaintiff and the defendant.
The 4th error assigned is to the answer of the learned judge to the 6th point of the defendant below, wffiich was, that “ recitals in deeds estop only parties and privies, and that the plaintiff, being a stranger to the deeds in the defendant’s chain of title, cannot take advantage of the recitals therein to estop the defendant from claiming and setting up that said alley or right of way was abandoned, or that it was extinguished by adverse user.” This was properly refused under the evidence in the cause. The deed, which the defendant had given in evidence and under which he claimed, from Peter Sprague and wife, dated February 4th 1857, conveyed to him the lot as 94 feet in depth to the line of the alley,
In regard to the 7th assignment of error, we perceive no such inconsistency or contradiction in the answers of the learned judge below as is pretended or anything calculated to mislead the jury.
Judgment affirmed.