61 Pa. Super. 43 | Pa. Super. Ct. | 1915
Opinion by
The question presented in this appeal is whether the averments contained in the appellant’s bill were sufficient in law to sustain it. The court below deemed them insufficient and on demurrer dismissed the bill. The
Without attempting to enlarge on the principal here laid down, we believe the facts stated in appellant’s bill bring it within the principal here stated. The language in his deed is of great importance, but we must consider the conditions on the ground at the time the conveyance was made if we are to ascertain the real intention of the grantor. In a conveyance designating a street as a boundary, it is always open to proof to show that the street was unopened and unused, and therefore the grantee’s right was limited to the edge or side of the street. So with respect to the alley in question. As intimated by Brother Porter, in Sharpless v. Willauer, 39 Pa. Superior Ct. 205, the conditions actually existing on the
Appellant avers that at the time the deed was made the lot was vacant, with the alley as appurtenant; that a deed was made by this same grantor, eleven years before appellant’s deed, to one D. A. Magee for the use of this strip of ground as a private alley; that appellant constructed his house with reference to it, built part of a brick walk on it, and sold off land with respect to it. His bill might have, with more particularity, averred the use at the time the conveyance was made, but the inference as to such use is clear from the foregoing facts. They are sufficient to sustain the plaintiff’s bill. When land is sold bounded by a private alley, which alley is in fact opened and used at the time the convéyance is made, and the alley is convenient or necessary to the premises sold, unless there is something in the conveyance restricting the use solely to the grantor or expressly excepting the alley from the grant, the right to use it passes with the conveyance and becomes appurtenant to the property.
There is no serious question over the right of the plaintiff to have equitable relief. Our case of Andreas v. Steigerwalt, 29 Pa. Superior Ot. 1, is ample authority.
The assignments of error are sustained, the decree is reversed, the bill reinstated, and a procedendo awarded.