McCarty v. Kitchenman , 47 Pa. 239 ( 1864 )

The opinion of the court was delivered, by

Bead, J.

A four-feet wide alley had been Hid out in 1831 by the owner of the whole ground through which it ran, from Fourth street to Charlotte or Pink street, for the accommodation of the lots on its north and south sides. It was distinctly recognised, as an existing alley, in a deed from Samuel Paynter (the original owner of all the ground) and wife to John Fitzgerald, dated 19th July 1831, and duly recorded, conveying the lot on its north side to Fitzgerald, he being then the owner of the lot at the north-east corner of Master and Fourth streets, over the northern part of which this alley was extended into Fourth street. The defendant below derived his title to the two lots, conveyed to him hy Robert Scott, administrator of David Scott, and John Scott, from Fitzgerald, under whom his grantors claimed. In 1843, David Scott and John Scott purchased the large lot on Fourth Street, extending through to Charlotte street, on the north side of this alley, and in 1844 the lot on the northeast corner of Fourth and Master street, fourteen feet front on Master street by fifty feet in depth on Fourth street. The title to the lot of the plaintiff below was also deduced from Samuel Paynter to David Scott, who purchased it from Ann Nice, to whom it had been conveyed by sheriff Porter, by deed dated 25th July 1844, having been sold by him as the property of John Fitzgerald.

Upon the lot at the north-east corner of Fourth street, there was, at the time of the purchase by the Scotts, a two-story brick messuage or tenement with a two-story brick kitchen, and there appears also to have been at the time of its purchase by them, a messuage or tenement on the lot to the east of it, which is the one owned by the plaintiff. After the purchase by the Scotts of the corner lot, and of the lot on the north side of the alley, it would appear that they erected on the north lot a three-story double brick messuage, which extended in its second and third stories upon the south and corner lot the distance of eight feet, making the front on Fourth street twenty-three feet two-and-a-half inches.

David Scott having died, by an order of the Orphans’ Court, for the city and county of Philadelphia, the undivided moiety of the decedent in these three lots was sold at public sale, on the 18th October 1859, and the surviving brother sold his interest at the same time, the purchaser thus obtaining title for the whole. The defendant purchased the north lot and the corner lot described as No. 1, but with separate descriptions and a nota bene, showing the manner in which the three-story messuage was extended as above stated eight feet on the corner lot on the south. The plaintiff purchased the lot to the east of the corner lot, described as No. 2, containing in front on said Master street fourteen feet, and extending of that width in depth forty-eight feet to a four-feet wide alley.

It is clear-, therefore, that both parties purchased these lots with a full knowledge that there was a four-feet wide alley running from Fourth to Pink street, laid out by the owner of the whole ground twenty-eight years before, and recognised in the deeds which formed the muniments of their title, and by the archway made by the Scotts, and which neither they nor any other person could close or obstruct, without the consent of all the owners of the lots bounding on it. The obstruction complained of being a gate put upon the Fourth-street end of the alley by the defendant, shows it was in use when the Seotts were the owners of the three lots, and that they never pretended to have a right to close it. The plaintiff purchased with his lot the right to use this alley, and the defendant purchased his lots with a full knowledge that they were sold to him, subject to this easement. This statement of the facts disposes of the whole case. It was both a continuous and an apparent easement.

But it is perhaps proper to notice some of the authorities on this subject, as we might otherwise be supposed to have overlooked them. The case of Kieffer v. Imhoff, 2 Casey 438, appears to be completely in point, and the statement of Chief Justice Lewis, page 445, covers this case completely with this addition, that here it was not in the power of the Seotts to have closed this alley. Maynard v. Esher, 5 Harris 222, arose upon an alleged easement of light and air, and if it conflicts with Kieffer v. Imhoff, the latter is the better law. Pyer v. Carter, 1 Hurlst. & N. 916, was the case of a drain which was held to pass with a house without any express grant for that purpose. In Ewart v. Cochrane, 7 Jurist N. S. 925, Lord Campbell in the House of Lords quotes this case approvingly, but I am aware that in Dodd v. Birchall, 8 Jurist N. S. 1181, a few months afterwards, Martin, Baron, said, “ On the other point I have already said, that I think the case of Pyer v. Carter went to the extreme verge of the law.” The case of Pyer v. Carter was recognised by the Master of the Rolls in Suffield v. Brown, 9 Law Times Rep. 192; but Lord Chancellor Westbury in the same case on appeal, Id. 627, in the present year says of it: “ I cannot look upon the case as rightly decided, and must wholly refuse to accept it as authority.” But he expressly says: “ to the earlier cases cited in Pyer v. Carter, as authorities for its decision, there can be no objection.” In the case before him the Lord Chancellor was clearly right in dissolving the injunction, the whole easement claimed by the vendor arising from the fact that he had been in the habit of allowing the bowsprits of ships in his dock to project over his wharf. It was neither a continuous nor an apparent easement. The Lord Chancellor indulges in a somewhat damaging criticism upon apportion of Mr. Grale’s Treatise on Easements, but nothing that he has said affects the case before us. Professor Washburne has in his valuable work on Easements and Servitudes discussed the case of Pyer v. Carter, or rather quoted it, without the advantage of having seen the observations of Baron Martin and the Lord Chancellor in the cases just cited.

Judgment affirmed.

Woodward, C. J., was absent at Nisi Prius when this case was argued.