Equitable Gas Co. v. Limegrover , 54 Pa. Super. 250 ( 1913 )

Opinion by

Henderson, J.,

The rights of the parties to this proceeding under the grant of the defendants dated September 30, 1904, are to be determined in the light of the prior grant to the plaintiff by James Johnston, Sr., dated April 11, 1889, for the reason that the defendants’ grant makes express reference thereto in describing the extent of the plaintiff’s privilege. Under the Johnston deed the plaintiff acquired "the right to lay down and maintain a line of pipe with the necessary appurtenances for the same for the transportation of oil or gas or other volatile substances over the land of the grantor” on a line marked on the ground, the space occupied by the pipe line when laid down not to exceed ten feet in width, however, and seventy-eight rods long. Permission was expressly given to erect and maintain telegraph or telephone poles which were declared to be a necessary appurtenance. The right of way thus granted was to continue for fifteen years. The defendants became the owners of the land soon after this right was acquired and were the owners at the expiration of the fifteen years’ period. On the termination of the right the plaintiff and the defendants entered into negotiations for a new contract and the deed of September 30, 1904, was the result of the negotiation. That deed recognizes the presence of the pipe line over the land and describes the subject of the grant as the right “to have and maintain its pipe line for the conveyance of gas over and upon that certain tract of land in Penn township, Allegheny county, Pennsylvania, bounded by lands of John Fisher, Limegrover Brothers, and others as now laid down upon said premises, entering from a point on line of Mrs. Bright’s land, near Sandy Creek road and running thence to line of John Fisher’s land, being the same line that was laid down under right of way given by James M. Johnston, Sr., dated April 11, 1889, the said right of way having expired by limitation of term.” The Johnston deed included the telephone line as a necessary appurtenance. When, therefore, the grant of the defendant refers to the subject of the grant as being “the same line that was laid down under a right of way given by James M. Johnston, Sr.,” the reasonable construction of the language is that the concessions granted by Johnston were renewed by the defendant. That is, the easement theretofore granted included as a necessary part in the contemplation of the parties a telephone and telegraph line, and for this the “said right of way” was given by Johnston and this is what the defendants continued by their deed. We regard it as reasonably clear under the language of the grant in the light of the Johnston deed that the privileges which the plaintiff enjoyed under the latter conveyance were to be continued by force of the new deed. The defendants contend that the case is to be disposed of by a consideration of the terms of their grant and that it makes no reference to a telephone or telegraph line. This would be a convincing reason but for the connection of their deed with the Johnston deed. Reading the two together we cannot avoid the conclusion that by the terms of the deed the plaintiff acquired the same right as to the telephone and telegraph lines which it had under the prior grant. The thing granted was a right of way for that which was “laid down” under the right given by Johnston, which had expired by limitation, the right of way referred to being the easement acquired by the plaintiff under the Johnston deed. If the defendants’ deed does not demand this construction then its meaning is doubtful and the principle should apply that its terms are to be considered in the light thrown on them by the situation of the parties, the circumstances and relations of the property in regard to which they have negotiated and the necessities for which they would probably provide, as illustrated in Meigs v. Lewis, 164 Pa. 597; Moore v. Ins. Co., 199 Pa. 49; Thatcher v. West Chester St. Ry. Co., 35 Pa. Superior Ct. 615. The situation of the plaintiff, the character of its business and the importance of the telephone line in the successful management of that business make it highly improbable that in negotiating for the continuance of its right of way no account would be taken of the telephone line. The defendants knew of the line and the use made of it and no objection was made at the timé the deed was delivered to the continued presence of the poles on the land. It is not easy to believe that they had any other thought than that the plaintiff was to remain in the enjoyment of the rights which it got from Johnston. Another circumstance to be considered is that no objection to the continued use of the telephone line was made by the defendants until about three years after they made the grant. It is a well-established principle that the conduct of the parties is to be considered in construing an ambiguous contract and the silence of the defendants for so long a time with knowledge of the daily use of the line gives complexion to the meaning of the parties. No evidence was offered by the defendants in support of the averment in the eighth paragraph of the answer that it was the purpose of the defendants to use the telephone line for other purposes than those connected with its gas business and that subject need not be further considered than to say that the plaintiff has not shown any right to make any other use of the line than as an appurtenance to the gas line in the business of supplying gas. Careful consideration of the case satisfies us that it was rightly decided by the learned trial judge.

The decree is affirmed.