Zell v. Universalist Society , 119 Pa. 390 ( 1888 )

Opinion,

Mr. Justice Paxson :

If the right of the plaintiffs below to the use of the alley in controversy depended upon an express grant in their deed, •such right could not be successfully claimed, for no such grant appears. Nor could such use be claimed from necessity, for no necessity exists, the plaintiffs having access to the lot purchased from the administrator of James M. Lewis, over other ground of their own fronting on Franklin street. If the right to the use of the alley exists at all, it is by virtue of its being appurtenant to the lot purchased of the Lewis estate.

Upon this question we are in no doubt. When the administrator of Lewis sold this lot at Orphans’ Court sale, it had on it a frame house, the only access to which was by means of the alley in question. The alley was visible upon the ground; the purchaser could see it, and at the same time could not fail to know that it was the only means of access to the lot about to be sold. It therefore passed by the sale as appurtenant to the lot, and the fact that the deed contains no express grant is wholly immaterial. Nor does the fact that the lot was bought by parties owning the land lying between it and Franklin street make any difference. The alley being appurtenant to the lot, the title to the latter carried with it the right to the use of the alley. The plaintiffs were not required to impose a servitude upon other lands belonging to them in order to reach the lot which they had purchased from the Lewis estate, and the access to which they were clearly entitled to over the alley in question.

Where a continuous and apparent easement or servitude is imposed by the owner on one portion of his real estate for the benefit of another, the law is well settled that a purchaser at private or judicial sale, in the absence of an express reservation or agreement on the subject, takes the property subject to the easement or servitude : Cannon v. Boyd, 73 Pa. 179, citing Seibert v. Levan, 8 Pa. 383; Overdeer v. Updegraff, 69 Pa. 110. The right to the use of this alley was a continuous right; it was attached to the land and not to the person of the owner. Hence it is immaterial that the frame house on the rear of the lot has been removed.

It was contended, however, by the defendants below that even if the plaintiffs had the right to use this alley, they had no right to grant the use of it to De Bourbon, who lives on Fourth street upon property which forms no portion of this lot. De Bourbon is the lessee of the plaintiffs of fifteen feet of the rear portion of the lot, and also of the use of the alley. If the alley is appurtenant to the lot, the lessee of the latter has a right to the use of the alley. Whether he is surcharging it is a question not raised by this record.

The mere fact that the plaintiffs were bidders at the public sale of the alley was not evidence that they did not claim the right to use it. They might well have desired to purchase the soil of an alley over which they had the right of way, if for no other reason, to avoid any dispute about it in the future. And had they bought it for such reason alone, the result shows it would have been a judicious investment.

Judgment affirmed.