Moffitt v. Lytle, Appeal, No. 155

Appeal, No. 155 | Pa. | Jan 7, 1895

Opinion by

Mb. Justice Green,

That the reservation contained in the deed from Moffitt to Henderson, is not an exception of a part of the land conveyed, but is only a reservation of a right of way over the surface of the land, is so manifest that it is not really denied by the plaintiff. The very point was decided by this court in the case of Kistler v. Reeser, 98 Pa. 1" court="Pa." date_filed="1881-06-20" href="https://app.midpage.ai/document/kister-v-reeser-6236875?utm_source=webapp" opinion_id="6236875">98 Pa. 1, where the reservation was made in terms almost precisely similar to the reservation in this case. Mr. Justice Trunkey, delivering the opinion, said, “ where land is granted and the right of way reserved, that right becomes a new thing, derived from the land ; and although before the deed the grantor had the right of way over the land whenever he chose to exercise it, yet when he conveyed the land the reservation was a thing separated from the right of the grantee in the land: State v. Wilson, 42 Me. 9" court="Me." date_filed="1856-07-01" href="https://app.midpage.ai/document/state-v-wilson-4930186?utm_source=webapp" opinion_id="4930186">42 Me. 9. 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 of a new right or interest. Am exception is always of part of the thing granted, it is of the whole of the part excepted.”

In the present case the whole of the land was conveyed in fee by Moffitt to Henderson and the reservation was in these words : “ Said party of the first part reserves the right of road or lane from said Franklin and Mercer road along said west line and McElhinny’s east line eighteen feet wide to said party of the first part’s fields or orchard.” After the conveyance Henderson was the owner of the fee of the whole four acres conveyed including the land embraced within the right of way, and Moffitt was the owner of a right of way over the surface to the extent of a strip eighteen feet wide. There was nothing in the reservation to exclude Henderson from also passing over the strip or from such use of it as did not interfere with Moffitt’s use of it for his right of way.

The plaintiff’s statement of his cause of action included two distinct acts of trespass, one the plowing and harrowing of the surface, and the other the tearing down of a short piece of fence which was erected by the plaintiff on the reservation but so as to cut off the defendants’ access to their barn. The’ plaintiff’s right of way over the land gave him no right to build; the fence and the defendants were not guilty of any trespass. when they tore it down. The first specification of error complains of the rejection of a question to Charles Lytle whether the erection of a fence along the interior line of the right of way would interfere with the use of the barn. This was a proper subject of proof and the question should have been allowed. The first specification is therefore sustained. The second is sustained because the reservation was not exclusive and the court should have so instructed the jury. The third specification is sustained because the charge is manifestly erroneous so far as taking down the fence was concerned, and it would be erroneous as to the plowing if the plowing did not interfere with the plaintiff’s right of way. The fourth specification is sustained because the plaintiff’s first point asked for a binding instruction to find for the plaintiff and this was affirmed without qualification. The defendant’s right to plow the land would depend upon whether the plowiug interfered with the plaintiff’s right of way. The fifth assignment as to the fence is sustained for the reason already stated. The sixth is sustained because the plaintiff’s third point asked for a binding instruction to find for the plaintiff and this was affirmed. Whether the defendants could enter and plow on the right of way would depend upon whether the plowing would interfere with the right of way, and as to tearing down the fence, as we have already said, it was not a trespass. The seventh assignment is sustained because the plaintiff had no right to build the fence even on the right of way so as to shut off access to the defendant’s barn. The land on which it was built was the land of one of the defendants, the plaintiff having nothing but a right of way over the surface which did not need a fence in order that the plaintiff might enjoy his right.

The eighth assignment is sustained because the defendants’ third point should have been affirmed just as it stood.

Judgment reversed and new venire awarded.