Manderbach v. Bethany Orphans' Home , 109 Pa. 231 ( 1885 )

Mr. Justice Gordon

delivered the opinion of the Court,

On the 11th of August, 1856, John Manderbach sold to the Lebanon Valley Railroad Company a perpetual right, for the use of the railroad only, to take water from a spring on his land, and for that purpose to lay a three-inch pipe from the railroad to said spring, either on the property of the grantor, or on that of John Sheetz, an adjoining land owner. After-' wards, on the 1st of September, 1859, Manderbach granted to Sheetz the right ’ to use the water from said spring by attaching, on his own land, a two-inch pipe to the railroad company’s pipe, and for this privilege he agreed to pay the sum of five dollars a year for each house that he might thus supply with water.

John Manderbach died intestate; the defendant below was appointed administrator of his estate, and he, said defendant, afterwards by purchase became possessed of the land upon which the spring above mentioned was situated, and in turn sold it to the Bethany Orphans’ Home. As there were in this conveyance no reservations except such as related to a water right distinct from the rights above stated, the grantee, of course, took not only the land but all the appurtenances not reserved. But as rent issues out of land it is incident to the reversion, and the right to demand it necessarily attaches to the ownership. Hence, in Streaper v. Fisher, 1 Rawle, 154, a sheriff’s sale of a lot of ground was held to pass also a rent charge. It is urged, however, that this is not in the nature of a rent, but is rather a personal right belonging to the estate of the grantor. But, in answer to this, it ma]’ well be contended that the covenant to supply Sheetz’s pipe was undoubtedly one running with the land; by it the land was made perpetually servient to this right, and the plaintiff took it subject to the burthen thus imposed upon it by the grantor. Nor do I see how the fact that the Sheetz pipe tapped that of the railroad company on lands not of said grantor can make any difference. The water nevertheless comes from the Manderbach property, and for a disturbance of it such as would interfere with Sheetz’s rights an action would lie. Thus the servitude upon the land continues as it was when first created, and whether Sheetz was to be supplied with water through his own pipes or those of the railroad company can made no difference.

Indeed, the right of Sheetz to use the railroad pipes makes them, so far as the use intended is concerned, as much his own as though he had laid them in place. Should the company abandon them, Sheetz is still entitled to their use, and he may at any time enter upon the servient land for the purpose of repairing or relaying the pipes. All this follows as incident to his grant, and his rights cannot be destroyed either by the neglect or abandonment of the railroad company.

Here then, is a right charged upon the land of the plaintiff; a right to which his land is servient, and in consideration of which Sheetz is obliged to pay an annual compensation.

This compensation is, therefore, a profit issuing yearly out of lands; a rent, reditus to the landlord for their annual use, and as such it passed by the conveyance of H. H. Manderbach to the plaintiff.

The judgment is affirmed.