McKee v. Perchment

The opinion of the court was delivered, October 16th 1871, by

Sharswocd, J.

The alley, which was the subject of controversy in this action, was laid out originally by David Aiken through the centre of two large lots which he owned, lying between the Greensburg and Pittsburg Turnpike Road and Shakespeare street, in the village of East Liberty, Allegheny county. The distance from the road to the street was 200 feet, and he divided the whole into several lots fronting on each, with a depth of 94 feet, leaving 12 feet for the alley in question. Over these 12 feet there was an express grant by him to each purchaser of an easement only. The principal defence set up on the trial was that the easement had been abandoned. It is plain that no one proprietor could do this. All the grantees of lots had an equal interest, and it required the concurrence of all. An enclosure upon any part of it would have been a disturbance of all, as it had an outlet at both ends. The defendant below and plaintiff here undertook to make out the defence by proving that it had been enclosed on each side by a fence built through the middle of it; that stables, coal-houses, privies had been erected, and trees and bushes planted on the soil over which it would otherwise have run. Now certainly, to rebut this evidence, it was entirely competent for the plaintiff below to prove by the acts and declarations of the different proprietors that the occupation and use of it in the manner stated were for temporary purposes only and not with any intention to abandon the easement. This disposes of the 1st, 2d, 5th and 6th assignments of error.

The 3d assignment complains of the answer of the learned judge below to the defendant’s 4th point, that if the grantor of the plaintiff stood by and saw the defendant erect a stable and other improvements on the site of the alley, he and the plaintiff claiming under him would be estopped from setting up any title to the easement. This the learned judge affirmed, with the qualification that there was no agreement or understanding between the several persons entitled to the privilege of the alley that erections of such a character might be made temporarily without prejudice to the right of any of those in whom the easement was vested to require the opening of it at some future day whenever it might become desirable. This is the proper interpretation of the language of the answer, and was a correct and necessary qualification of the point in view of the evidence which had been given in the cause by both the plaintiff and the defendant.

The 4th error assigned is to the answer of the learned judge to the 6th point of the defendant below, wffiich was, that “ recitals in deeds estop only parties and privies, and that the plaintiff, being a stranger to the deeds in the defendant’s chain of title, cannot take advantage of the recitals therein to estop the defendant from claiming and setting up that said alley or right of way was abandoned, or that it was extinguished by adverse user.” This was properly refused under the evidence in the cause. The deed, which the defendant had given in evidence and under which he claimed, from Peter Sprague and wife, dated February 4th 1857, conveyed to him the lot as 94 feet in depth to the line of the alley, “with the free use of said alley as laid out by David Aiken through lots Nos. 15 and 16.” This was not a recital in any sense of the word but a description of the thing granted. Even, therefore, if Peter Sprague had title to the soil of the alley, either by previous abandonment of the easement by those in whom it had been vested or by adverse user, it is clear that he did not grant it to Stewart McKee. He chose to restore it as he had a perfect right to do, so far at least as his lot was concerned, to its original condition as an alley or easement merely; and Stewart McKee, having accepted that conveyance, must show an extinguishment or adverse user subsequent to its date. The rule then that recitals in deeds are only binding on parties and privies, though it may have been true as an abstract proposition, had no application to the case. Though David Aiken’s plan was not recorded, the reference to it in this deed was notice to the defendant of its existence and of the alley laid down on it.

In regard to the 7th assignment of error, we perceive no such inconsistency or contradiction in the answers of the learned judge below as is pretended or anything calculated to mislead the jury.

Judgment affirmed.