March-Brownback Stove Co. v. Evans , 1899 Pa. Super. LEXIS 82 ( 1899 )

Opinion by

William W. Pobteb,, J.,

This action is for nominal damages for the obstruction of two rights of way. Had they been ways of necessity only, they would have ceased on the opening of the public road, giving access to the places to which the ways led. When land is conveyed, to which the vendee cannot have access without going over the land of the vendor, a right of way is implied, and of necessity becomes appurtenant to the land conveyed so long as the land cannot be enjoyed otherwise, but the vendee may lose this right by cessation of the necessity on which it was founded: Wissler v. Hershey, 23 Pa. 333.

The rights of way, however, which in this case are alleged to have been obstructed, are not implied ways or ways of necessity. They were created by expressed grant. Rights, when so created, are appurtenant to all and every part of the land conveyed, and the person, to whom any part may be conveyed, is entitled to the right of passage.: Watson v. Bioren, 1 W. &. S. 227; Gunson v. Healy, 100 Pa. 42; Ehret v. Grunn, 166 Pa. 384.

Where a right of way is expressly granted and its precise location and limits are not fixed or defined by the deed, it is competent for the parties to define the location and determine the limits of the right of way by subsequent agreement, use and acquiescence: Kraut’s Appeal, 71 Pa. 64.

In the present case the ways were located by use and acquiescence. It is conceded that the public road, as opened, did not cover one of the ways, as used and located, except in small part. There is, as to this right, therefore, no question as to its preservation to the plaintiff, who was entitled to a directed verdict for the nominal damages claimed. The defendant, however, contends that the way to the depot, as located by use, was shown by the testimony to be covered by the public road as constructed; and that if the testimony was conflicting as to location, the question should have gone to the jury. An examination of the testimony convinces us that the trial judge was justified in saying that the evidence is practically undisputed that the public road does not cover the full extent of the right of way. But further than this, the defendant herself admits that she testified in her suit against the county for damages for the opening of the public road, that this right of way was through the coal yard, “ not where the road is at the present time. It was across my property, but not where the road is now.” In explanation, she now says, she was advised that she could put the right of way just where she pleased; and adds, “Now I please to put it in the public road.” On this testimony, a trial judge would not be warranted in sustaining a verdict for the defendant, finding that the location of the road covered fully the private right of way.

There is no substance in the fifth and sixth assignments. The evidence offered would be no defense to the present action The judgment of the court below is therefore affirmed.