Schmidt v. Lieberum , 1913 Pa. Super. LEXIS 96 ( 1913 )

Opinion by

Henderson, J.,

As the case is now presented it seems to be well established that the road for which the plaintiffs are contending has been in existence for at least sixty-five years. It was visible to the eye and in use by all whom business or pleasure took that way. A part of it was fenced; trees were growing on each side of another part; a schoolhouse was located and in use on it and it was well defined on the ground. All of this appears in the fifth finding of fact as to which there is no assignment of error. The testimony of many witnesses supports this finding. It is equally well established that the title of Christian Lieberum, one of the appellants, does not cover the land on which the road is located. The deed from George Thomas to Peter Butler which is a link in the Lieberum. title excepted from the operation of that conveyance a strip thirty feet wide reserved for a road. It is true the conveyance uses the term “reserving” as well as “excepting,” but the other terms of the period make it clear that the land covered by the road was excluded from the grant. The strip of ground was by the very words of the grant excepted and reserved from “the operation of this deed,” and in the same connection it is recited that the strip referred to “is not hereby intended to be conveyed.” More appropriate language than this could not be employed to express the intention of the grantor. It means that what the grantee acquired was all of the land described except the part reserved for the road which part the grantor did not intend to, and did not in fact, convey. That the land thus reserved was a part of the road then in existence to which the witnesses referred and which the court below found to be the fact is sufficiently established. There is also evidence that while Lieberum owned the land' extending from the westerly side of the Schmidt tract as far as the Snake Hollow road he sold lots laid out on a street forty feet wide substantially on the line of the old road and although the location may have been a little shifted by the arrangement of the lots, such change if made in no wise affected the use of the road, and this the court has found to be a fact. There was thus a dedication of this part of the road to public use and an express intention to extend the road theretofore existing through the Schmidt tract along the line of the forty foot street to the vicinity of the new schoolhouse. The road thus located and defined was in general use to such an extent as to justify the conclusion of the trial judge that a way existed by prescription through the land of both of the appellants. The dedication by the owners of the land and the public use warrant a presumption of acceptance of the road by the public. The presence of a gate or bars on the road at times was not such an obstruction as defeated the easement made appurtenant to the Schmidt land, for it is distinctly shown that the gate and the bars were a convenience to the owner of the land and used to restrain cattle from wandering. This seems to have been assented to by travelers on the road at times but could not prejudice the rights of the public or destroy those of the adjoining property owners whose interests would be affected by the closing of the road: Connery v. Brooke, 73 Pa. 80; Kohler v. Smith, 3 Pa. Superior Ct. 176. Continued encroachments or permissive trespasses would not extinguish public or private rights. It was proved that the Lieberum house is located in part on the land excepted in the deed from Thomas to Butler. It is therefore an obstruction in a way established by prescription and confirmed by the dedication which Thomas made.. The plaintiffs as holders of titles in the Schmidt plan of lots have a vested interest in the street, and have standing to complain that a nuisance is maintained prejudicial to their interests.

The evidence does not disclose such a state of facts as required the court to hold that the plaintiffs’ cause was defeated by laches. The house was built several years before the bill was filed, but the court has found on sufficient evidence that a substitute was provided, travelers being permitted to pass around the house on an adequate road. It was only when the way was blocked for teams and the school children prevented from passing to and fro that the substantial injury to the complainants arose. The defendant has not shown that he was misled to his injury, that he was deceived by the conduct of the complainants or that any fraud was practiced. He could have learned from the deed which he held that the strip of land used for a road did not belong to him and we do not find anything in the conduct of the plaintiffs which was an inducement to him to locate a part of his house in the road. It would seem that the plaintiffs were willing to accept a substituted way around the house instead of insisting on its removal, but Lieberum in the end not only obstructed the way with his building but closed up the passage which supplied the appropriated space. The claim of an estoppel under such circumstances does not appear to us to be well founded.- A careful examination of the rulings of the court, the conclusions of fact and the decision of the court convinces us that there is no error of which the appellants can successfully complain.

The decree is affirmed at the cost of the appellants.