Bierkamp v. Rubinstein

Dissenting Opinion by

Mr. Justice Roberts:

In my view, when the township acquired the rights of the several abutting property holders in the rear alley, it obtained at the same time the rights which those property owners had in the side alley. Apparently each abutting property owner held a fee interest in that part of the rear alley that crossed his tract and an easement of passage over the rest.* The township, by acquiring all these interests, plus ten additional feet, obtained a fee interest in the rear alley and in what had been the rear of the former owners’ premises. The easement over the side alley was appurtenant to those property interests, for the side alley was necessary for access from Lancaster Avenue to the rear alley.

Appellants contend, and the majority agrees, that the township may not use the side alley as a public thoroughfare because of the greatly increased burden this would put on appellants, the owner of the servient estate. At the outset, this is not the type of use that we have considered to be a sufficient additional burden to prevent the continued use of an easement. Here there is no qualitative change in the use of the easement. The alley has been used by public pedestrian traffic in the past, and it will continue to be so used in the future. There is no indication that this traffic will increase to any appreciable extent if the alley is officially designated as a public way, and there is cer*97tainly no indication that a greatly increased burden on appellants would result. Easement grants are construed in favor of the grantee, and on this theory, even changes in use that clearly are qualitative have been upheld. See Taylor v. Heffner, 359 Pa. 157, 58 A. 2d 450 (1948) (use of road by horse and wagon in cement and feed business changed to use by trucks for hauling of coal); Garan v. Bender, 357 Pa. 487, 55 A. 2d 353 (1947) (use of cemetery access road by pedestrians changed to use by automobiles).

The majority reasons that the easement’s use is restricted to the original purposes for which it was created: access to the rear of the dominant properties by way of the alley. The township now has become the owner of the rear property, however, and it merely wishes to do exactly what was done before—provide access to it through the side alley for those who might use it, namely, its citizens.

Appellants’ unreasonable burden claim is particularly weak in light of the fact that appellants were themselves holders of part of the easement over the rear alley. They conveyed their interest therein to the township, presumably knowing that the township intended to use the rear alley, and the additional ten feet which each owner conveyed, for a public street. Since the easement in the side alley was concededly appurtenant to the rear alley, it is logical to assume that appellants realized that the side alley would also be used for a public way. It makes little sense to maintain that the easement is limited to its original use when the owner of the servient property joined in the conveyance that permitted the new use with full knowledge of what was transpiring.

I dissent.

There is no indication that the fee interest in the alley remained in anyone other than the several property holders.