78 Pa. Super. 115 | Pa. Super. Ct. | 1921
Opinion by
Appellant filed a bill to restrain appellee from interfering with appellant’s use of an easement. He averred that he owned a farm of about 100 acres and that defendant owned the adjoining farm of about 70 acres, bounding his farm on the east, and that there was appurtenant to his farm an easement of way over appellee’s farm to reach a public road which was its eastern boundary.
On April 19, 1882, both farms were owned by Cyrus S. Herr. By deed of that date, though not recorded until April 13, 1889, Herr conveyed the 100-acre farm to appellant’s predecessor, together with “.......the use, privilege and liberty of, and passage in, along, over and through, the lane or road passing over and through the premises of the Cyrus S. Herr, as always had been used by the said Cyrus S. Herr, from the within described
By deed dated April 2, 1888, and recorded April 3, 1888, Herr conveyed the 70-acre farm to appellee’s predecessor, the deed containing the following provision: “Reserving the right and privilege for himself, his tenant and workman, and all interested, of way, to pass through the said premises, along lane, and through gates, &c., — from the Maytown and Bainbridge road, to the farm adjoining on the west and now occupied by Jacob Ziegler, at all times as has been formerly used and established by former owners, and to their heirs and assigns, forever, closing gates &c., and do no damage.”
Appellant averred his enjoyment of the right-of-way over the servient tenement for many years “without interruption” until “during the summer of......1919” when defendant erected the bars in question; they were removed “during the fall of 1919,” but were again erected “about the end of June or the beginning of July, 1920,” though later removed. He also averred that defendant had informed him he proposed to reconstruct them across the way.
Appellee answered, among other things, that his tenant “for the protection of his cattle and to keep them from straying away and over the lands of plaintiff, erected bars on the boundary line between my premises and the premises of the plaintiff by placing a post on the one side of the said right-of-way into which two rails 17 feet in length were placed with the other end of the rails laid on the bank on the other side of the right-of-way; and he, the said tenant, did also lay rails across
He also answered: “......it is my intention to erect and construct a permanent swinging gate across the said right-of-way wherever it is necessary to protect my cattle, or those of my tenant, however not in any way to interfere with the rights of the plaintiff over the said right-of-way......”
A replication was filed and the case was tried. Among the findings of fact supported by evidence, were: “the said bars were constructed by erecting a post on one side of the right-of-way into which the ends of two rails were inserted and the other ends of the rails were laid on the bank on the other side of the right-of-way”; and “the said bars did not obstruct the right-of-way but required persons using the same to remove the bars in order to drive over the right-of-way.” Among the conclusions of law filed, we approve the following: “The defendant, being the owner of the farm over which the right-of-way passes, can make any use of the right-of-way which is consistent with the enjoyment of the said right-of-way by the plaintiff and in this case had the right to erect swinging gates and movable bars across the said right-of-way which were necessary to keep his cattle in the pasture field and the bars erected in this case did not exceed his rights and were not obstructions of an unreasonable character.” The bill was dismissed, and that action is now here for review.
If we apprehend the argument made on his behalf, appellant contends that Herr’s conveyance of the 70-acre farm with the reservation of a right-of-way as quoted above, conferred upon appellee’s grantor no title to the.
The deed for appellant’s farm indicates the character of the enjoyment contemplated; it specifies the right to pass “without injury or damage to the said Cyrus S. Herr [then owner of the 70-acre farm] for wagon, carriage, cart, vehicles, horses or cattle, as by him or them [grantees] shall be necessary or convenient.” It would be unreasonable to require the owner of the 70-acre farm to fence off the way across his farm from east to west, or in the alternative, take the risk of damage to his property by cattle straying either from appellant’s farm or from the public road, or perhaps risk the escape of his own cattle, when such consequences may easily be prevented by the construction of proper gates at suitable places. ' What is reasonable varies with the circumstances ; the character of the land, or of the way, or of the use of the easement may affect the determination of what is reasonable; but it is a question of fact to be determined when alleged interference arises: Ellis v. Academy of Music, 120 Pa. 608, 622; Kohler v. Smith, 3 Pa. Superior Ct. 176, 179; Helwig v. Miller, 47 Pa. Superior Ct. 171, 175. While in Helwig v. Miller, supra, the record discloses no express grant of the easement, we held: “Under the facts found it is clear that the plaintiffs remained the absolute owners of the soil traversed by the private way. This being so, they could use it as they chose so as not to interfere with the proper and reasonable use by the defendant of his dominant right. In Hartman v. Fick, 167 Pa. 18, we have a case practi