McKinley v. Ulery

Opinion by

Head, J.,

Some time prior to January 1, 1853, William Hopkins, the common ancestor in title of plaintiffs and defendants, became the owner of a parcel of ground in the borough of Washington on the southwest corner of Wheeling and College streets. The parcel as a whole had a frontage of 120 feet along Wheeling street and 160 feet along College street. It consisted of the major portion of two lots Nos. 44 and 45, as originally platted in that portion of the town. These lots each fronted sixty feet on Wheeling street and extended of uniform width southward 240 feet to what is now known as Strawberry alley. At some time earlier than the date mentioned, Hopkins, or some previous owner, had so far rearranged the original plan as to sell off the southernmost eighty feet of these two lots thus making a new lot fronting eighty feet on College street and extending back 120 feet to the line of original lot No. 46. Apparently deeming it advantageous to follow this arrangement, Hopkins, on January 1, 1853, conveyed to one Morrison the southernmost sixty feet of the property as first above described, thus making it front eastward on College street. The description shows that the lot was to extend of the same width by parallel lines and at right angles with College street 120 feet. In that deed the grantor made the following reservation: “The said Hopkins reserves, however, for himself, his heirs and assigns, the right of way by means of a twelve foot alley running along the northern side of said lot.” In December following Hopkins sold the remainder of his property as first herein described, fronting 100 feet on College street and extending back westward therefrom 120 feet to the line of original lot No. 46, and in addition thereto the following easement, viz.: “with the right of way over twelve feet of width of ground extending along the south side of the said lot of ground.”

By reason then of the reservation in the one deed and the corresponding grant in the other it seems as clear as the ordinary use of English language could make it that the common ancestor in title of the parties to this action created both a dominant and servient tenement. Just as clearly the service which the former could rightfully demand and the latter must lawfully yield was coextensive with a strip of ground twelve feet in width extending the entire depth of both properties, to wit, 120 feet, from College street on the east to the line of lot No. 46 on the west. We say the language of these conveyances is so plain, so readily to be understood by layman as well as by lawyer, that it requires the aid of no legal rules of construction. Nor can it furnish any proper foundation for the argument that it contains any ambiguity which requires the aid of . parol testimony to explain it. When Morrison, the ancestor of the plaintiffs, came to convey the lot which they now own, he in turn reserved “for the use of the owner of the adjoining property on the north a twelve foot alley running along the north side of said lot.” In the hands of that vendee of Morrison the same lot was levied on by the sheriff and sold to Smith & Miller by a conveyance from William B. Chambers, high sheriff, etc., duly acknowledged in open court on January 10, 1883. There can then be no room for doubt that when the servient tenement thus became vested in Smith & Miller by the sheriff’s deed just referred to, it was subjected to an easement of way along its northern line twelve feet in width and as long as said northern line, to wit, 120 feet.

In the other line the dominant tenement passed by several mesne conveyances until it was acquired by one Sexton in 1868 and as his property it was levied on and sold by the sheriff to Rush in 1878. In all of the conveyances in this line of title the easement originally reserved by Hopkins, in his deed to Morrison, was described and granted in language substantially similar, and there can be no doubt that easement, as an incident to the dominant tenement, passed by the sheriff’s sale last mentioned to Rush: Richmond v. Bennett, 206 Pa. 470. Rush conveyed to Smith & Miller, already mentioned, in 1882, and therefore by their subsequent purchase of the servient tenement at the sheriff’s sale in 1883 the title to both properties became reunited in them.

By a deed dated September 29, 1888, the said Smith & Miller conveyed to the present plaintiffs a lot of ground on the west side of College street: “fronting on said street 60 feet more or less and extending back therefrom of uniform width 120 feet more or less, adjoining property of Mrs. Wright on the south and of said Smith & Miller on the north, reserving nevertheless the right of way over the twelve foot alley on the north side of said lot for use of occupants of property on the north side of said alley, which alley shall be for the common use of the occupants and owners of said property and of the grantees herein named, their heirs and assigns. It being the same property or lot of ground which was conveyed by William B. Chambers, sheriff, &c., to said Smith & Miller by deed acknowledged in open court on 10th day of January, 1883.”

Was there anything in the language of the reservation in this deed just quoted to show that the grantors intended to reduce in length the right of way so often referred to and shear the dominant tenement of a part of what had been incidental to it since 1853? We can see nothing. The thing reserved was the right of way “over the twelve foot alley on the north side of said lot.” That way or alley had been since 1853 coextensive in length with the lot line. Moreover, the deed declared that what was being thereby conveyed was the “same property” which had come to the grantors by the sheriff’s deed of January 10, 1883. We have already seen that when the said Smith & Miller acquired title to the lot which they thus undertook to convey it was subject to an easement of way over a strip twelve feet in width extending from College street on the east along the entire northern line of the lot 120 feet to the line of lot No. 46 on the west.

Were there nothing else in the case then than the conveyances already mentioned it would seem too clear for argument that by applying the language of the several grants and reservations to the situation on the ground, there would be no difficulty whatever in ascertaining either the location or the extent of the said easement. In such cases there is no occasion for the introduction of parol testimony, either to identify the subject-matter of the grant or by way of explanation of an alleged ambiguity where none exists, unless it be created by the introduction of the parol testimony itself: Harvey v. Vandergrift, 89 Pa. 346; King v. Coal Co., 204 Pa. 628. In the latter case Mr. Justice Mesteezat, after citing many authorities, among them Cook v. Babcock, 61 Mass. 526, uses the following language: “Mr. Starkie says: ‘When a subject-matter exists which satisfies the terms of the conveyance, there is no latent ambiguity, and no evidence can be admitted for the purpose of explaining the. terms of the deed of conveyance.’ And in Cook v. Babcock, it is said by Shaw, C. J., speaking for the court, that when the description in a deed or devise is clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.”

But it appears that at some time during the transmission of these titles.along the lines indicated a stable was constructed in the southwest corner of the dominant tenement. The evidence does not disclose by whom or when it was erected, but it was certainly before the purchase by the plaintiffs in 1888 and probably some considerable time before. It was so constructed that it faced north and could be entered only from the dominant tenement; about half of it in length stood on that property and the remaining half of it, its rear portion, stood on the extreme western end of the twelve foot right of way. As stated, however, there was no entrance to it from that right of way, the owner of the dominant tenement being obliged to turn from the alley into his own property in order to have access to the only, entrance to the stable. For whatever length of time it stood, such use of it seems to have been acquiesced in by the owners of both properties, and no one contended either by recital or description in any conveyance or other declaration that the length of the right of the way had by such use been shortened or any portion of the original easement lost, nor even that the easement was being surcharged, although the owners of the servient tenement could make no use whatever of the soil that belonged to them while thus covered by the building. After the present defendants acquired title ■they ceased to use the stable and permitted the plaintiffs, at their request, to move it entirely on their own property. They then undertook to assert that the defendants had lost title to that portion of the original easement or right of way which had been for a time occupied by a portion of the stable and proceeded to fence it as part of their property, thus preventing the defendants from obtaining access through said way to a new alley west of their property, running north and south, which had been opened up by the owners of original lot No. 46. The defendants removed that fence and this action of trespass followed.

The learned trial judge, permitting a verdict for the plaintiffs for nominal damages, reserved the question of the legal effect of all the conveyances referred to and afterwards entered judgment n. o. v. for the defendants. The opinion he filed forcibly states the ground on which the judgment rests, and we have therefore contented ourselves by thus briefly indicating the reasons that impel us to reach the same conclusion.

Judgment affirmed.