50 Pa. Super. 422 | Pa. Super. Ct. | 1912
Opinion by
This is an appeal by plaintiffs from judgment on verdict in favor of defendant in an action of trespass in which the plaintiffs alleged the maintenance, by the defendant, of a house in a dedicated but unopened street appurtenant to plaintiffs’ land. The land in dispute was part of a
As was said in Spackman v. Steidel, 88 Pa. 453, so it may be said here, this suit is not between any parties to the original deed; it is not an action of covenant based on the contract; it is for a tort. The complaint of the plaintiffs is not for the disturbance of an easement once enjoyed but substantially to recover, in an action ex delicto, for damages to a right, based on an implied covenant, of which they never had any possession. The right to an easement, which, at the most, is all that the plaintiffs have, may be barred by a possession and use
The judgment is affirmed.