The opinion of the court was delivered, January 9th 1872, by
Agnbw, J.This case is governed by the construction to be placed upon the deed of George Breed to Louisa Hartupee, referred to in the bill of the plaintiffs. The 10 acres conveyed to Mrs. Hartupee are taken out of the heart of four out-lots of the town of Allegheny, laid out by the state in separate parcels, and numbered 222, 223, 240 and 241. George Breed was the owner of these four lots, and in his deed referred to them only. They lie adjoining to each other, running from a corner common to the four lots, and divided from the land now claimed by John H. Me*62Creery, by Pasture lane, one of the original lanes laid out by the state in the survey of her plan of out-lots, upon her reservation at the mouth of the Allegheny river. The reservation of a public road, the subject of this dispute, is not referred to in any way or in any part of the deed to Mrs. Hartupee, except as it is found within a parenthesis in the middle of the description of the ground conveyed by the deed. The description beginning at a stone in the centre of the junction of Ann and Mary streets proceeds by metes and bounds to a stone in the junction of Strawberry lane and Sarah street, thence north 8° 55' east 14-$$, perches to a post; thence north 26° 45' east 16T90- perches to a post; thence north 39° 48' east perches to a post; thence north 60|° east fiy3^ to a post in Pasture lane (the line thus described from stone in Strawberry lane and Sarah street to be the centre line of a public road not more than forty feet wide, to be laid out and opened diverging toward the valley of Snyder’s run, or to run on said line as a centre, along up the hill as far eastwardly as this last point in Pasture lane, provided it be required bv said Breed, his heirs or assigns), thence south 13° 10' east, 69T\,3ff perches along the centre of Pasture lane, &c. The plaintiff, in the bill before us, claims that this was a fixed and certain reservation of a public road along a certain boundary line as its centre, which operated as a reservation of twenty feet along this line out of the land sold Mrs. Hartupee from Strawberry lane to Pasture lane, carrying along with it a mutual obligation on part of Breed and his assigns to lay off 20 feet along this boundary upon his own land; and that any one being an assignee of any part of Breed’s land can enforce this obligation, notwithstanding Breed and those claiming under him the other parts of the four out-lots not sold to Mrs. Hartupee never exercised his option, by requiring the road to be opened. We think this is not the true construction of the deed. The reservation was neither certain and fixed in its location and in its measurement, nor was it absolute in its nature. It was not fixed in location, for it was to be laid out and opened either diverging toward the valley of Snyder’s run (which would carry it to the left or westwardly from the line of the deed), or to run upon that line as a centre (so says the deed), along up the hill as far eastwardly as this last point in Pasture lane. It was not certain in its measurement, for it was to be not more than forty feet wide, but how much less depended on the future determination of Breed. Nor was the reservation absolute in its nature, for it was to be only “ provided it be required by said Breed, his heirs or assigns.” That it was the intention of Breed, by this contingent reservation, to preserve to himself the power of laying out a street along or near to the Hartupee line is rendered still more .manifest by the accompanying drafts furnished to us. Sarah street, upon which the rcser*63ration begins at Strawberry lane, bending to the right by three distinct courses, comes out upon Pasture lane, not far from the post on Pasture lane to which the Hartupee line runs, and in its general course is nearly parallel with the Hartupee line, which was to be the centre line of the road. The Hartupee line, beginning at the stone in the centre of Strawberry lane and Sarah street (which is a street of forty feet in width), runs longitudinally and diagonally along Sarah street until it passes out of the latter about two hundred feet from the stone.
The effect of this course would be, that adding the width of the reserved road along the Hartupee line to its point of divergence from Sarah street, the latter would increase in width until at the point of divergence it would be 80 feet wide, and then passing this point it would suddenly relapse to its former width of 40 feet. Viewing this fact and the parallelism of the two roads, and it appears to be pretty evident that Breed, who then owned all the property, intended to do away with Sarah street if he opened the road along the centre line, and for this purpose he reserved the right of diverging from the centre line, at the end of the second course, toward the valley of Snyder’s run, coming out just about where Sarah street comes into Pasture lane; or, if he preferred, to keep on the centre line the whole distance to Pasture lane, and thus preserve the parallelism with Sarah street. But it appears that Sarah street remains as at first located, and it is not alleged that Breed ever gave notice of his intention to open the road along the centre line. It is obvious, therefore, that he must have concluded to suffer Sarah street to remain as it stood, and not to open the road on the centre line. Those to whom his title has descended appear to be of the same mind, for instead of a road required to be opened along the Hartupee or centre line, they have laid out lots between Sarah street and this line coming entirely up to the line. With this view of the reservation in this deed, it is evident that Mrs. Hartupee and her alienees have no power to open a road on the Breed side of this line. William McCreery has no interest, therefore, in this question. John H. McCreery has still less, for his land lies on the east side of Pasture lane and is no part of any of the four out-lots set forth in the deed. The reservation in the deed is governed by the property described in it as the property of Breed, and not’ by the fact that Breed was the owner at the same time of other property outside of the property thus described. On this point Jamison v. McCredy, 5 W. & S. 129, cited by the appellee, is against him; to which may be added Kirkham v. Sharp, 1 Whart. 323. According to these cases, if the reservations in this case were absolute and certain, and extended to the alienees of Breed, it would not reach the alienees of the property outside of the deed. We are of opinion, therefore, that the court below erred in its construction of the deed to Louisa D. Hartupee, *64and the decree is reversed and the bill dismissed at the costs of the appellees.