Appeal, No. 318 | Pa. | Feb 23, 1920
Opinion by
The plaintiffs filed a bill in equity praying defendants be restrained from obstructing, closing or interfering with the former’s use of a certain private road, or “paved carriageway”; after final hearing, on bill, answer and proofs, the injunction was granted; defendants have appealed.
On the date just stated, Sylvester conveyed the Gray’s lane front of his land, some 246 feet in depth, to Rowland Evans; the latter forthwith deeded the western portion thereof, a little over one-third of his purchase, to the defendant, Lydia L. Wain.
In both the Evans and Wain deeds, there is reserved to “Frederick Sylvester, his heirs and assigns, — being the owners, tenants and occupiers for the time being of the adjoining piece of land to the northward,” — the “free use, right, liberty and privilege” of the carriageway in question, 16 feet wide, running along the westernmost end of the land thereby granted, “from said Gray’s lane to said adjoining piece of land to the northward....... for all purposes of ingress, egress and regress as fully and effectually as though said paved carriageway was a public highway.”
The above recited reservation states that the carriageway is to be enjoyed by “Frederick Sylvester, his heirs and assigns, being the owners, tenants and occupiers for the time being” of the lands to the north, “in common with” the grantee, his heirs and assigns, “being the owners, tenants and occupiers for the time being” of the balance of the tract.
From the date of his conveyance in 1887, until March, 1913, Sylvester remained the owner of the land north of the plot conveyed to Evans, and, during this period, the paved carriageway was used only for family purposes, by the occupants of the Sylvester and Evans, or Wain,
March 27, 1913, Sylvester conveyed to one Mahan a portion of the original tract immediately north of the premises theretofore deeded to Evans, giving and granting to Mahan the same use of the paved carriageway which previously had been reserved in the deed to Evans; but Sylvester, by special covenant, then and there extinguished the right of passage, possessed by himself, his heirs and assigns, and all future owners and occupiers of the remainder of the original tract (being that portion lying north of the part conveyed to Mahan), over the roadway leading southward therefrom to Gray’s lane, being the portion of the paved carriageway in question.
The land conveyed to Mahan runs clear across the Sylvester tract from east to west, more than 400 feet in width. Mahan opened through the center of this property a private road 33 feet wide, extending from Glyn-Wynne avenue on the east to the western boundary line of the tract, at which point it connected with the paved carriageway. Prior to plaintiff’s bill, there was erected on the Glyn-Wynne avenue entrance to this new road a sign, 41 inches long by 36% inches high, reading as follows : “Private Eoad. Persons not having business with residents of this property are forbidden to use this road. Any violation of this notice will be prosecuted as a trespass.”
Mahan laid out building lots on either side of the 33-foot road, some of which were conveyed by him to plaintiffs; in each instance the deed granted the privilege of the paved carriageway and reserved, for the benefit of the balance of the land, a like right.
From the time the Mahan land was thus divided into building lots, and occupied by several homes, the use of the carriageway increased; and this, despite the fact that such way was legally and physically shut off from the easement of the remainder of the Sylvester tract to
The defendants, however, claiming that the opening of the 33-foot road practically makes a public thoroughfare from G-lyn-Wynne avenue to the paved carriageway, and that this has so enlarged the use of the latter as to constitute an abuse of the privilege therein possessed by plaintiffs, threatened to erect a permanent barrier at the northern entrance to the way, and thus exclude any and all future use thereof by others than the occupants of the Wain lot. The present bill was filed to prevent the erection of this barrier.
The chancellor finds as a fact that the paved carriageway has been employed since 1913, “by plaintiffs and their families, in walking and riding over it to and from the railroad station and stores in Haverford”; that “their friends use it by vehicles, and tradespeople, who have business with the plaintiffs, also- use it with their wagons and automobiles,” adding, “undoubtedly it is used to some extent by people other than those to whom the privilege is given by the reservation contained in the deeds,” but that this latter use is merely incidental (not specially encouraged by plaintiffs), and not of a character materially to injure defendants.
The court below concluded as a matter of law that the right-of-way over the road in question might be “used and enjoyed by those who owned or occupied any part of the dominant tenement, for any purpose for which it may from time to time be legitimately applied,” that “only those who- may be properly regarded as trespassers...... can be excluded,” and that its present or attempted use by those “who have no right or authority so to do, gives defendants no warrant or license to close the way or interfere with the lawful and legitimate use thereof by plaintiffs.”
The court below, in answer to one of plaintiffs’ requests, states a conclusion of law to the effect that plaintiffs, their families, servants, visitors “or others to whom they may grant permission,” are entitled to the use of the way in controversy; this conclusion is justly complained of as too broadly stating plaintiffs’ rights.
While we cannot agree with the suggestion of defendants that the words of the original reservation restrict the use of the carriageway to “the owners, tenants and occupiers for the time being” of the Sylvester tract, no more can it tenably be maintained that Sylvester retained for himself and his assigns, an easement in gross over the road, which could be granted, by his or their “permission,” to whomsoever he or they pleased. The words of the reservation, “owners, tenants and occupiers,” were evidently intended for the very purpose of showing that the easement was not in gross, but appurtenant to the land (Jamison v. M’Credy, 5 W. & S. 129, 141); and, being so appurtenant, of course the privilege includes not only the right to use the road by the respective owners for the time being of the several pieces of the original tract, but also by their families, and others who, through permission of such owners, may desire to visit their homes for any lawful purpose; this marks the extent of the easement: Com. v. Burford, 225 Pa. 93" court="Pa." date_filed="1909-05-20" href="https://app.midpage.ai/document/commonwealth-v-burford-6249883?utm_source=webapp" opinion_id="6249883">225 Pa. 93, 99; Gunson v. Healy, 100 Pa. 42" court="Pa." date_filed="1882-10-02" href="https://app.midpage.ai/document/gunson-v-healy-6237089?utm_source=webapp" opinion_id="6237089">100 Pa. 42, 46.
The court below did not err in stating, as a matter of law, that, when the easement was created, the parties must have anticipated the Sylvester property would not always remain in its then present condition, but might
We cannot agree that the facts of this case show plaintiffs, or their predecessors in title, to have participated in any endeavor, the purpose and effect of which was to increase the burden on defendants’ servient estate, of a character and extent to justify a finding that the former had renounced, abandoned, or extinguished their rights of easement. While “it is difficult, if not impossible, to lay down a clear and definite rule to determine what may be construed a reasonable and proper use [of an easement], as distinguished from an unreasonable and improper one, and such questions must, of necessity, be usually left to the determination of a jury or the trial court, as questions of fact” (9 R. C. L. 787), yet here the chancellor has found the facts against defendants; and we are not convinced of reversible error in that regard.
The case of McKinney v. Penna. R. R. Co., 222 Pa. 48" court="Pa." date_filed="1908-06-02" href="https://app.midpage.ai/document/mckinney-v-pennsylvania-railroad-6249483?utm_source=webapp" opinion_id="6249483">222 Pa. 48, in no sense governs the present one, for the facts are materially different. In the McKinney case the complainant’s right in the alleged private way, as a private way, had been extinguished by his active participation in legal proceedings whereby the way was turned into a public road; after this statement of fact we need add nothing else in order to distinguish the two cases.
The many authorities cited by counsel on both sides have been' examined and considered, but we do not feel that any useful purpose would be served by specially mentioning others than those already referred to; nor is it necessary to pass specifically upon each of the twenty-two assignments of error.
The decree is affirmed; costs to be divided.