Mercantile Library Co. v. Fidelity Trust Co. , 235 Pa. 5 ( 1912 )

Opinion by

Mr. Justice Elkin,

This bill was filed to compel the removal of certain alleged obstructions to the free and uninterrupted use of a passageway created by an agreement in writing between private parties. Tbe assignments of error are numerous, but the legal questions involved with which we are primarily concerned are few and not difficult of solution. Our first inquiry must necessarily relate to the construction of the agreement of, 1864. What rights and privileges were granted by this agreement, and what kind of use in the passageway did the parties intend to be enjoyed? The words of a grant are to receive a reasonable construction and one that will accord with the intention of the parties; but, in order to ascertain their intention, courts will look into the circumstances under which the grant was made: Connery v. Brooke, 73 Pa. 80. Love, the predecessor in title of appellee, covenanted with the predecessor in title of appellant to “forthwith throw out and open the northernmost ten feet” of a certain lot of ground to be connected with a sixteen-foot wide passageway belonging to the adjoining owner with whom he covenanted “for the purpose of widening the said passageway (that is the sixteen-foot passageway) at that part to the width of twenty-six feet for the common use, and privilege as a street or passageway of him, the said Thomas C. Love, his heirs and assigns, and of The Franklin Market Company aforesaid, their successors and assigns, and his and their respective tenants and occupants.” There can be no doubt that the parties intended by their agreement to make a passageway for their common use twenty-six feet in width, nor is this construction questioned by either side of the present controversy. Indeed, each side accepts this view as the proper interpretation of the agreement, but insists that when the covenant is so understood it sustains their respective contentions although widely at variance. The differences between the parties grow out of the kind of use authorized to be made of the passageway. Appellee, the successor of Love in title, has construed the covenant to give it the right to construct a pavement with a curb elevated several inches above the cartway and covering the entire ten feet upon which the easement was originally imposed. If this interpretation be sustained it means the denial of the right of appellant to use any part of the ten feet for cartway purposes. Taking into consideration the circumstances under which the agreement was made, such a construction would in our opinion do violence to the intention of the parties. The Market Company, one of the original parties to the agreement, dedicated sixteen feet to the common passageway, while the other party only dedicated ten feet. If it should now be determined that the party who dedicated the ten feet to the passageway has the right to construct a curb and pavement elevated several inches above the cartway so as to occupy the entire strip of ground thus dedicated, no practical advantage would result to the Market Company or those succeeding to its title. It seems perfectly clear that the purpose of the Market Company in entering into the agreement was to secure a wider passageway for the use of its patrons and to afford more convenient access to its place of business. It is scarcely conceivable that the Market Company gave Love the right to make use of its sixteen feet of ground as a passageway for the benefit of himself and tenants, and that in return it was to receive no substantial benefit in the use of the ten feet of ground dedicated by Love to the common use of both parties. Again, if the intention of Love was simply to construct an elevated pavement upon his ten feet of ground, there was no necessity for him entering into an agreement with the adjoining owner to effectuate this purpose. He had the right to do this without consulting the wishes of any one. It is evident that both parties entered into the agreement for purposes mutually beneficial and this could only mean that the common passageway should be widened by the additional ten feet. Nor is it open to doubt that the passageway thus widened was for a long period of years used as a cartway for horses and wagons as well as a means of access for persons. The parties themselves in effect placed this construction upon their own agreement by the use made of the passageway. It is true that in later years a pavement was constructed upon the ten-foot strip of ground but this pavement was level with the cartway and answered both purposes until it was elevated at the time about which complaint is here made. Under these circumstances we are constrained to hold that the parties intended the passageway mentioned in their agreement to be used as a means of access for horses, wagons, vehicles and persons, and that this right is interfered with by the elevated pavement about which complaint is made. The pavement should be lowered to the level of the cartway in order to carry out the intention of the parties. We think this was the agreement of the parties and that it is controlling here. In this view of the case it is not necessary to discuss what constitutes a street or what rights and privileges abutting property owners have generally in public thoroughfares.

Appellee contends that it should have the right to maintain a pavement with curb elevated above the cart-way on the ten-foot strip of ground because appellant, or its predecessors in title, constructed a five-foot wide pavement at the other side of the passageway. If the facts warranted it, this argument would have strong equitable grounds to rest upon. But under the facts as found, and the evidence is all to this effect, there existed at the time the agreement of 1864 was entered into on the side of the Market Company property a raised curbed sidewalk five feet wide. This sidewalk was a part of the sixteen feet dedicated to the common use of both parties by the agreement in question. The covenant must be understood to apply to the physical conditions then existing on the ground. The Market Company gave sixteen feet, or eleven feet of cartway, while Love only gave ten feet which was a less number of feet than the Market Company set apart for cartway purposes- The parties were familiar with the conditions on the ground and if Love intended to reserve the right to construct a raised pavement on the ten-foot strip of ground, he should have done so in his agreement. He did not do so, and for a period of forty years, and perhaps more, no attempt was made to construct a pavement raised above the cartway on his side of the passageway. We think this clearly shows that the parties either intended that the easement should be superimposed upon the physical conditions then existing on the ground, or that these conditions in view of the subsequent acts of the parties should be considered in determining the intention of the parties under the agreement. In either view the conclusion is the same, and the ten-foot strip of ground must be regarded as an addition to the passageway, which we have said means a passageway for every purpose contemplated by the agreement. Certainly, a raised pavement with a curb narrows the passageway and seriously interferes with some of the uses intended to be enjoyed.

There is nothing in the agreement which defines what kind of a passageway shall be maintained, and we can see no good reason why the appellee may not, if it chooses, construct a pavement as part of the passageway and on a level with it, so that it may serve as a convenience to pedestrians as well as for cartway purposes. The parties themselves made such use of the passageway for many years, and there is nothing in the agreement - to deny them this right.

The other legal question involved is of a different character. Appellant contends, not only that the pavement should be lowered to the level of the cartway but that the gratings, doors, fire escape and other alleged obstructions should be removed. The learned court be.low refused to so decree and we have concluded, after full consideration, upon the facts as found, that the proper conclusion was reached. We do not agree that the case at bar in this respect is ruled by Schmoele v. Betz, 212 Pa. 32; Mershon v. Walker, 215 Pa. 41, and other cases relied on by appellant. In each of the cases cited to sustain this contention, the party against whom complaint was made, was not the owner of the fee upon .which the easement was imposed. This is a material fact and one which must be taken into consideration in properly determining the rights of the parties in such cases. In this commonwealth the rule always has been that the owner of land who grants a right of way over it conveys nothing but the right of passage and reserves all incidents of ownership not granted. In a very recent case, Duross v. Singer, 224 Pa. 573, this court reiterated the rule by making use of the following language: “The grant of a fee subject to an easement carries with it the right to make any use of the servient soil that does not interfere with the easement, and this right cannot be abridged by words used in the granting clause unless the intention to limit the estate is clearly expressed, or is a necessary implication from the words used.” In 1864, when the agreement in question was entered into Love was the owner of the fee in the ten-foot strip of ground and he only granted the right of passage over it. He retained all other incidents of ownership and his successors in title have the undoubted right to the enjoyment of the fee in every way that does not materially impair the use of the easement. If there had been, or if there shall hereafter be, any substantial interference with the use of the passageway, it would be the duty of courts to give relief. But in the case at bar the learned court below sitting as a chancellor has found as a fact that there has been no substantial interference with the use of the passageway either by the gratings in the pavement, or by the doors, or by the fire escape, or by the excavations under the pavement. All of the obstructions complained of are upon the property of appellee and have been constructed as an incident of ownership in the fee. The owner of the servient soil has the right to make use of his property as he chooses, if by so doing, he does not substantially interfere with the easement. The learned court below has found as a fact that there was no substantial interference with the use of the passageway and we must accept this finding as binding upon us. In this connection counsel have submitted since the argument of the case a photograph intended to show recent conditions of a fire escape, for the purpose no doubt of indicating a substantial interference with the use of the easement, but we must take the record as it comes to us from the court below, and cannot undertake to decide this appeal upon facts not considered by the chancellor.

We have concluded that the decree should be modified by requiring appellee to lower the curb and pavement to the level of the cartway, but in all other respects the decree to stand as entered so long as conditions remain the same.

Decree modified as above indicated, and as modified, it is affirmed. Costs to be divided equally between the parties.