Moore v. Neubert , 1902 Pa. Super. LEXIS 325 ( 1902 )

Opinion by

William W. Porter, J.,

Quigley was the owner of some twenty-two acres of land on which was located a spring. He conveyed a portion of the land to Kline, granting the use of the spring. Subsequently, during negotiations between Moore (the plaintiff) and Quigley in respect to the purchase by the former of a part of the land, Quigley agreed that Moore might have the use of the water provided he could make a satisfactory arrangement with Kline. This resulted in the laying of a pipe from the spring to Kline’s property, and thence to the property for which Moore subsequently received a deed from Quigley. This pipe was laid at the joint cost of Moore and Kline. The deed to Moore contained no grant for the use of the water. Pursuant, however, to the promise of Quigley and the arrangement with Kline, Moore proceeded to build a house upon the lot purchased by him and continued the use of the water for some eighteen years. Quigley’s title passed to the defendants. They denied Moore’s' right to the water and cut off his pipe. For this Moore has recovered a small verdict in this action of trespass.

The defendants in this court allege that the plaintiff had no right to recover because (1) his claim to the use of the water being in the nature of an easement, he failed to exhibit a proper grant; and because (2) if the right to use the water was a license, it was revocable by Quigley or his successors in title. The case is not attempted to be supported by the plaintiff on the ground of an easement created by grant, but on the ground of the creation of an irrevocable license. The court below instructed the jury that the license to Moore was revocable unless Moore had, on the faith of the license, incurred such expenses as could not be compensated in damages, and directed them to find whether such expenses had been incurred. The court submitted also the question whether the defendants had knowledge of the existence of the license to Moore when they took title to the premises on which the spring was located. As to the second question, there was little to submit, since one of the defendants, at least, admitted that before the purchase of the Quigley property, he knew that Moore was supplying himself-with water from the spring thereon. On the first question the court committed no error injurious to the defendants. A license may be converted into what is in effect an easement, not upon the principle that the right passes by the parol agreement, but that whenever one party has in part executed it by payment of money, taking possession and making valuable improvements, the conscience of the other is bound to carry it into execution, and equity will compel him to do it: Le Fevre v. Le Fevre, 4 S. & R. 241; Campbell v. McCoy, 31 Pa. 263; Baldwin v. Taylor, 166 Pa. 507; Huff v. McCauley, 53 Pa. 206.

The appellants complain that the court failed in its duty in not withdrawing a juror because of improper and injurious statements made by counsel in his address to the jury. We are unable to say that the defendants suffered injury from the cause alleged, in view of the modest verdict returned, and particularly in view of the language of the court at the inception of the charge in which the jury were pointedly instructed to disregard the objectionable remarks of counsel. See Commonwealth v. Sarves, 17 Pa. Superior Ct. 407. The assignments of error are eight in number, but as the case is presented in argument, what has been said is believed to cover the errors which the appellant regards as substantial.

The judgment is affirmed.