232 Pa. 282 | Pa. | 1911
Opinion by
On March 8,1851, the corporation entitled, The President, Manager & Company of the Delaware & Hudson Canal Company, conveyed by three separate deeds to Russell F. Ford and Thomas H. R. Tracy three tracts of land situated in Lebanon township, Wayne county, Pa., containing in all about 1,164 acres. Each deed contained
Upon the premises conveyed as above stated in 1851, were, and still are, two bodies of water known as Upper Woods Pond, a natural body of water, containing about 80 acres, and Lower Woods Pond, also a natural body of
On August 6,1903, the Delaware & Hudson Company, being the corporation which was the grantor in the deeds above referred to (its name having been changed by the legislature of New York, where it had been incorporated), executed and delivered to Alonzo T. Searle and Levi F. Patterson, trustees, a deed for a portion of the lands described in the deeds of Lord and Tracy above mentioned, excepting and reserving “so much thereof as was conveyed by the party of the first part to Russell F. Lord and Thomas H. R. Tracy by deed dated 8th March, a. d. 1851.” The interests thus conveyed to Searle and Patterson, trustees, have since become vested in The Wayne Storage Water Power Company, the defendant in this case. The powers of the Delaware & Hudson Canal Company were limited by its charter granted in New York, and by statute in Pennsylvania, to the operation of a canal and a railroad appurtenant thereto. The powers of the Wayne Storage Water Power Company comprise the “storage, transportation and furnishing of water for manufacturing and other purposes, and for the creation, establishing and furnishing, transmission and using of water power therefrom.”
The present action in ejectment was brought to recover possession of the land covered by the two ponds above mentioned, upon the theory that the clause in the deeds to Lord and Tracy was in the nature of a reservation, and was not an exception, and that being a reservation, it created an easement for the purpose of storing water, which under the corporate powers of the canal company could only be used by it for the supply of the canal, and
The first question thus brought squarely before us for determination is whether the clause in the deeds under consideration constitutes a reservation or an exception. The trial judge held that it was an exception. The distinction between a reservation and an exception is thus stated in 2 Devlin on Deeds, sec. 979: “A reservation is some new thing issuing out of what is granted; an exception is a withdrawal from the operation of the grant of some part of the thing itself.” In the recent case of Sheffield Water Co. v. Tanning Co., 225 Pa. 614, our Brother StEWART said (p. 619): “The essential characteristic of a reservation as distinguished from an exception is, that its subject is something that did not exist before but is created by and grows out of the transaction. An exception applies only where the subj ect already exists. ’ ’ In the opinion in that case it is further shown, that in the deed then under consideration, “nothing was excepted out of the general grant; the deed invested the grantee with the legal title to the whole of the premises described in the grant; it conveyed to the grantee every inch of land falling within the description, whether occupied by dam, reservoir, pipes, tannery or otherwise howsoever, subject only to the right of the grantors, their heirs and assigns, to do those things upon the premises which the grantors had expressly reserved the right to do.”
This language seems to apply precisely to the terms of the present grant. The entire fee is conveyed by the deeds, and only certain rights are reserved to the grantors. The reservation is of “the absolute and unqualified right to occupy” so much of the land as may be necessary for reser
By reference to the deed, it appears that except for the purpose set forth in the clause of reservation, the right of the grantees to the land described, was not restricted. Upon the other hand, in so far as may have been considered necessary to serve the required end, there was reserved to the grantor, not merely the right to occupy specific parts of the land, but in so far as any physical limitations of the boundaries were concerned, the reservation was indefinite and uncertain.
Our examination of the clause satisfies us that the ef
The facts in this transaction seem to correspond in every particular with the requirements of the legal definitions of a reservation, and to be lacking in the essentials which distinctly define an exception. We are therefore impelled to the conclusion that the clause in question constitutes a reservation. It imposed a servitude upon the property, by which the new owners were restrained from the full and unlimited use of the land, and were obliged to suffer the canal company to do certain things upon the property, which were it not for the burden imposed upon it, the owners would have had the sole right to do. The right to make use of the land of another for a precise and definite purpose, not inconsistent with a general right of property in the owner, is in legal contemplation an easement or franchise, and not a grant of the soil: Boston Water Power Co. v. B. & W. R. R. Corp., 33 Mass. 512. A general definition of an easement and description of its properties, is compiled in 3 Farnham on Waters, .sec. 808, as follows: “An easement is a right in the owner of one parcel of land by reason of such ownership to use the land of another
There is a class of rights which one may have in the land of another, without their being exercised in connection with other land, and which are known as easements in gross. In these cases there is no dominant tenement. But in easements proper, it is essential that there should be both a dominant and a servient estate; but it is not essential that they should be contiguous. For example, a pew in a church may be appurtenant to a house quite distant from the church: Jones on Easements, sec. 5. In Perrin v. Garfield, 37 Vt. 304, it was held that a dam located a mile away was appurtenant to a mill to which it supplied water. This case was cited in Cady v. Water Works Co., 134 N. Y. 118, where Follett, C. J., said (p. 121): “An easement may be created though the dominant and servient estates are not contiguous.” In the latter case it was held that the right to receive water from a spring located in a village was appurtenant to a lot some distance from the lot upon which the spring was located. In the.present case, the bed of the canal, or the canal property, was the dominant tenement. It was that to which the servitude was due, or for the benefit of which it existed, and for which it was constituted. The Delaware & Hudson Canal Company was confined in the use of this easement to the limits of its corporate purpose, as set forth in its charter.' This would
The parties here agree that in or about the year 1898, the Delaware & Hudson Canal Company ceased to operate the canal. The water was drawn off; locks, gates and equipment were dismantled, and this condition of general disuse and decay has prevailed to the present time. The court below found the facts in accordance with the agreement, and also found as a conclusion of law that the acts of the canal company constituted a legal abandonment of its canal. It had no right under its charter to use the water from the reservoirs for any other purpose. An authority very much to the point is National Guaranteed Manure Co. v. Donald, 4 H. & N. 8. In that case a canal company had been converted by act of Parliament into a railway company, and the canal itself was abandoned. The canal company owned certain water privileges which the railway company undertook to dispose of by lease. It was held that the railway took no rights in the water privileges. Pollock, C. B., said (p. 16): “The railway company arose out of a previously existing canal company. The canal company had a right to take water for the canal; but the canal had ceased to exist; therefore the right of the canal company had also ceased. I agree with my Brother Martin that if an easement for a particular purpose is granted, when that purpose no longer exists, there is an end to the easement.” He then referred to Rochdale Canal Co. v. Radcliffe, 18 Q. B. 287, and said: “That case is a direct authority that a parliamentary corporation is a corporation for those purposes only for which it has been established by parliament, and has no existence for any other purpose, and that whatever is done beyond the scope of such, purpose is ultra vires and void. . . .
The principle is identical with that set forth in Jessup v. Loucks, 55 Pa. 350. There a canal company abandoned its works and ceased to use its easements. But before doing so, it undertook to sell the right to use its surplus water, and its grantee claimed the right to reconstruct a dam. It was held that the easement had been lost and the company had no right to make such a grant. Mr. Justice Thompson said (p. 362): “The grant itself being of an incident connected with or arising out. of the principal object in granting the charter to the company, must necessarily expire with the principal, and cease when that ceases. In the nature of things, there could be no fee-simple estate in it. The grant might be perpetual if the works continued to be so, but its perpetuity would depend upon that. . . . Such a grant, in its enjoyment, is as permanent only as the creation of which it is an incident, and necessarily as unstable. Like the natural phenomenon of the shadow cast by a substance, it vanishes when the substance disappears.”
It will be remembered that the right of the Delaware & Hudson Canal Company to alienate its lands is not at all in question. It did that in the conveyance to Lord and Tracy. But in so doing, it created a reservation which imposed a burden of servitude upon the lands in the hands of its grantees, the new owners of the fee. We are dealing merely with the character of this reservation. Our study of the question has satisfied us that the reservation created
The judgment of the. court below is reversed, and it is now ordered that judgment be entered for the plaintiff, for the premises described in the writ.