Hettrick v. Eby , 1915 Pa. Super. LEXIS 391 ( 1915 )

Opinion by

Kephart, J.,

William H. Eby and Cornelius Feese in 1878 were the owners of five contiguous lots of ground in the Borough of Shamokin. The lots fronted on Fifth street and extended in an easterly direction to Carbon street. Eby and Feese replotted the lots and fronted them on Spruce street. In 1889 they sold a portion of these lots to Elias Malick, the deed of conveyance using the following language : “It is hereby understood that an alley ten feet in width along the southern line of the above described pieces of ground shall be kept open for ever.” On this same date the same grantors sold a portion of the lots to Robert C. Garman, the deed containing language similar to that in the deed above recited. Other conveyances containing similar reservations were made by the same grantors. In 1889, Rebuck, one of these grantees, sold part of these lots to Malick and Garman without mentioning the alley. Malick conveyed his interest to Garman who then conveyed a lot to the plaintiff in this case, the deed containing a reservation of the alley. Feese and Eby, after selling the above ground, owned the western part of these lots which fronted on Spruce street fifty feet, extending back an even width one hundred and twenty-five feet, and Feese subsequently sold his interest to William H. Eby. Eby died and his lot was sold at Orphans’ Court sale for the payment of debts and purchased by his wife, Emma L. Eby. The conveyance, by virtue of these proceedings, is silent as to the alley at the southern end of this piece of ground. Appellant contends that inasmuch as no mention of the alley was made in the deed to her, the land was not subject to the easement. The difficulty with this position is that at the time the conveyance was made to Garman by Eby and Feese an alley from Fifth street to Carbon street was opened and used and was continuously used by the public from that time up to the time the appellant secured her title. She, therefore, had actual notice of its existence. Under such circumstances the law implies notice. Without this, appellant must have known of the alley, as the wife of Eby she joined in all the conveyances wherein it had been specifically men. tioned. It was well defined by the deeds above recited and also on appellant’s land by the action of her husband in building a barn at the rear of his land, leaving a space ten feet in width for the alley.

The understanding that the alley should be open forever between Malick and Garman and the grantors, Eby and Feese, in connection with the reservations in the several deeds made to them by these grantors would not only be evidence tending to show a dedication, but it would be sufficient to raise an implied covenant that the alley should be so continued for the benefit of these purchasers, without which these lots would not have beén bought. Malick was without doubt a competent witness to testify as to this understanding. He was in no way interested in the outcome of the litigation as he had parted with all of his title many years ago. The evidence as to this understanding was admissible and sufficient in explanation of the somewhat ambiguous language used in the deed of Eby and Feese in relation to the alley. The subsequent conduct of the grantors in permitting the alley’s continued use was evidence tending to show their construction of this language. “Where an easement or other right is not expressed and is sought to be implied as attached to the grant of the fee, the same must clearly appear from the intention of the parties as shown by the terms of the grant, the surroundings of the property and the other res gestae of the transaction.” Union Burial Ground Society v. Robinson, 5 Wh. 18; Fitzell, v. Philadelphia, 211 Pa. 1. And, as this court said in an opinion recently handed down in Rhoads v. Walter, ......“The language in his deed is of great importance, but we must consider the conditions on the ground at the time the conveyance is made if we are to ascertain the real intention of the grantor. In a conveyance designating a street as a boundary, it is always open to proof to show that the street was unopened and unused, and the grantee’s right was limited to the edge or side' of the street. So with respect to the alley in question. As intimated by Brother Porter, in Sharpless v. Willauer, 39 Pa. Superior Gt. 205, the conditions actually existing on the ground at the time plaintiff acquired title must be averred in order to secure the relief sought.” The fact that the description in the grantee’s deed included the alley by metes and bounds would not alter the conditions as they existed or throw any additional light on the grantors intention. All the physical conditions are against the contention that the reservation was for the grantors own benefit. The presumption is that it is for the benefit of the grantee unless it clearly appears to the contrary in the deed. If the grantors had intended it for their own benefit, they should have expressed it in language adequate to show that intention when they had it in their power to do so.

The measure of damages for a trespass of a temporary nature is the cost of restoring the property to its former condition. Unless such cost would exceed the value of the property, in which case the value is the measure of damages: Lucot v. Rodgers, 159 Pa. 58; Hershey v. H. S. Kerbaugh, Inc., 242 Pa. 227; Welliver v. Pennsylvania Canal Company, 23 Pa. Superior Ct. 79. Compensation for the injury complained of is what is sought. Plaintiff should have had the obstruction to the alley removed. She cannot recover for a coal bin erected in her cellar to meet the necessity caused by the obstruction. Whatever inconvenience she was put to, or loss which she sustained by reason of the obstruction, would be competent proof of the measure of damages, subject to the general rule as above mentioned. As this item of damage was accurately expressed in the testimony, substantial justice will be done by modifying the verdict twelve dollars, the amount the coal bin cost. The charge of the court fairly presented the appellant’s case. There is nothing in it prejudicial to her interest, nor did the court abuse its discretion in refusing a new trial, and unless it did so this court will not interfere.

The judgment as modified is affirmed at the cost of the appellant.