Kohler v. Smith , 1896 Pa. Super. LEXIS 125 ( 1896 )

Opinion by

Beaver, J.,

The plaintiff below, who is the appellant here, claimed by prescription an easement in, being the right of way over, the tenement of the appellee. It is not claimed that there was any express grant. The evidence as to the prescriptive right to the easement or right of way is not strong but we do not understand it to have been seriously controverted in the court below. The plaintiff was, therefore, entitled to the enjoyment of such an easement as had been acquired by him and Ins predecessors in title by prescription. There is evidence as to what the character of the right of way was. There was apparent necessity by the owner of the servient tenement, who was the defendant below, to use bars at the entrance to the so-called lane, through and over which the. plaintiff claimed a right to pass, so as to restrain his cattle whenever necessary, and there is evidence produced both by the plaintiff and the defendant that posts and bars were maintained for that purpose. Sometimes the bars were kept closed. At other times they were removed and the way left open, but it cannot be doubted that the defendant and those under whom he claimed used the bars whenever it became necessary for him to do so for his own convenience and protection. The present defendant erected a swinging gate at the point at which the posts and bars had been previously erected and maintained. In the trial of the case in the court below, two obstructions were complained of, the one the swinging gate erected by tbe defendant and the other the placing of stones at or near the bank of a small stream which was necessary for the plaintiff to cross in reaching his timber land, which was the terminus ad quod of the right of way.

In regard to the gate, the court below charged the jury as follows: “ The right of way, however, is a right of passage ordinarily, and ordinarily the property over which this right of way goes belongs to the owner of the soil who can make any use of it that is consistent with the enjoyment of the right of way by the other party. He has a perfect right to put up swinging gates or movable bars, provided that they are not an unreasonable obstruction to the enjoyment of this party’s right of way ovér his property. In ordinary cases swinging gates and movable bars across roads that are used in the manner in which this one appears to have been used are not obstructions of an unreasonable character. They are not ordinarily unreasonable interferences with the right of the passage and I say to you, gentlemen, that there is nothing in the evidence of this case which would justify you in finding that in this instance an exception to the rule has been shown, to wit, that the gates or bars in this case are an unreasonable interference; therefore, as far as that item of the plaintiff’s complaint goes, there can be no recovery on his part.” The appellant assigns this part of the charge of the court as error.

The question as to whether or not the stones placed in the lane near the creek were or were not an obstruction was left to the jury and their verdict was for the defendant.

Mr. Washburn, in his treatise on the American Law of Easements and Servitudes, third edition, 1873, page 264, says: “It seems to be now settled that, if the landowner is not restrained by the terms of the grant of a right of way across his lands for agricultural purposes, he may maintain fences across such way,' if provided with suitable bars or gates for the convenience of the owner of the way. He is not obliged to leave it as an open way nor to provide swinging gates, if a reasonably convenient mode of passage is furnished.” The same principle was practically decided in Pennsylvania in Hartman v. Fick, 167 Pa. 18, in which a reference is made to Connery v. Brooke, 73 Pa. 80. In the latter case, Mr. Justice Williams, in delivering the opinion of the court, says : “ But what is meant by the free use of a passageway? Does it necessarily mean that there shall be no gate or bar hung across it; or if there is, that it shall always be kept open ? Has not the owner of a passageway its free use, if he hangs a gate across it at its intersection with the street? If I grant the free use and the right and privilege of the hall of my house, with free ingress and egress at all times, must I take off the door leading into it or keep it wide open,in order that the grantee may have the free use of it ? Or can he not have its free use, if he can enter it by opening the door whenever he chooses ? Without doubt, I cannot unreasonably obstruct Ms úse of it; but, if the door amounts practically to little or no inconvenience, it seems to me that it is not necessarily a wrongful obstruction. ... A gate may be so placed as to be a practically unreasonable obstruction to the free use of a passageway, and it may be so constructed and placed as not to amount to any practical obstruction to its- use. Whether the gate in this case amounted to a wrongful obstruction was, therefore, a question of fact for the juay. If it was not a practical hinderance and, under the circumstances, an unreasonable obstruction to the plaintiff’s use of the passageway, then it was not a wrongful or illegal obstruction for which an action will lie.” In the case before us there was no evidence that the gate erected by the defendant was a practical hinderance nor that it was, under the circumstances, an unreasonable obstruction to the plaintiff’s use of the right of way across the defendant’s unenclosed field. There is some evidence on the part of the plaintiff that it was an inconvenience to open the gate, but his explanation shows that it was only the usual and necessary inconvenience which was caused by descending from Ms wagon, opeMng the gate, driving through it and closing it again. This we think, under all the authorities, cannot be considered in any sense as an unreasonable obstruction nor a hinderance to the free use of the way by the owner of the easement. The court below was, therefore, correct in that part of the charge to the jury which is complained of and, as this is the only assignment of error, the judgment is affirmed.