43 A.2d 601 | Pa. Super. Ct. | 1945
Argued March 6, 1945. In this action in ejectment, defendant disclaimed title to plaintiffs' land but asserted an easement of a way, with the right to maintain pipe lines under it, described by plaintiffs in their praecipe and declaration as "a strip of land twelve (12) inches in width, four feet beneath the top of the soil, and seventy-three (73) feet in length running through lot No. 2315 of plot of lots known as the Honey Pot plot, as laid out by the Susquehanna Collieries Company. . . . . ." The case was tried by a judge without a jury. Judgment was entered for defendant for the easement in question.
In 1889 Nanticoke Water Company (the predecessor of defendant) laid a 4 inch pipe line under lands of Susquehanna Coal Company in a trench twelve inches wide and four feet deep, to serve the city of Nanticoke with water. Susquehanna Coal Company on September 15, 1917, conveyed several tracts, including the land in question, to Susquehanna Collieries Company. (We will refer to the three companies as the Water Company, the *439 Coal Company and the Collieries Company.) The deed of conveyance, duly recorded, contains this recital, among others not in issue here, following a description of the land: "This conveyance is made subject also to the following easements, rights of ways, etc., viz: 7. All rights of way for pipe lines, telegraph, telephone, electric light and power lines through, over and across the premises hereby conveyed, which are or may be adverse to the title hereby conveyed." The four inch water pipe was in continuous use until 1929. In that year an additional eight inch water pipe was laid about four feet below the surface, but wholly within the twelve inch strip in question, now a part of plaintiffs' land. The water service was then transferred to the larger pipe, though the abandoned four inch pipe remained in place beside it. The Collieries Company subsequently subdivided a part of the land, and on October 17, 1930, conveyed lot No. 2315, to Frank and Julia Everett. They in turn conveyed the lot to plaintiffs in 1931. Neither of the deeds, to the Everetts nor to plaintiffs, refer to the recital of an easement contained in the prior deed from the Coal Company to the Collieries Company.
Appellants' argument assumes that the recital in the deed to the Collieries Company was, in law, a reservation. It was not. It did not create the easement but, on the contrary, referred to existing rights in the Water Company which had been enjoyed for many years. The fact, therefore, that the Water Company was not a party to that deed cannot be asserted against the existence of the easement. Cf. Lauderbach-Zerby Co. v. Lewis,
It is unimportant that the deed to appellants, and to their immediate predecessors in title, did not refer to the easement. An easement created by a grant, or its equivalent, is in nature and substance a covenant running with the land. Horn v. Miller,
supra; Rubel Bros. v. Dumont Coal Ice Co.,
We are of the opinion also that defendant clearly had the right to enlarge the actual burden by laying the additional eight inch pipe. The conveyance to plaintiff's predecessor, the Collieries Company, was not made subject merely to the existing four inch line but to "all rights of way for pipe lines." This language contemplates more than one pipe line. The right of way in this case, conceded by appellants in their praecipe and declaration, was a strip of land twelve inches wide, four feet deep, and so long as defendant confined the servitude within those limits it was within its rights in laying the additional line. The owner of a dominant estate may enter on a servient tenement and do any act necessary for the proper use of the easement but only in such manner as not to needlessly increase the burden on the servient tenement. In general, an owner may make changes not affecting thecharacter of the servient estate so long as the use of the easement is confined strictly to the purposes for which it was created. 2 Thompson on Real Property, Permanent Ed. §§ 676, 681. The purpose in this case was to provide the City of Nanticoke with an adequate water supply. The grant of an easement is to be construed in favor of the grantee and includes whatever is reasonably necessary to its enjoyment. Thus, in Hammond v.Hammond,
We may assume that an eight inch water main was reasonably necessary in this case to serve water users in the City of Nanticoke and others, including appellants. It was laid entirely within the right of way to which appellants' land was subject, and they, therefore, cannot complain of an increased burden.
Judgment affirmed.
