Kinsel v. Baird

Opinion by

Head, J.,

The motion to quash this, appeal cannot be allowed. The single error assigned is the action of the learned court below in entering judgment for the defendant non obstante veredicto. The manner in which this error is assigned does not violate any rule of this court. On the contrary, the practice followed is to be commended. The assignment complains of the action of the court in entering such judgment and then proceeds to quote from the record the defendant’s motion for judgment with the reasons therefor, and the opinion of the learned trial judge, concluding with the order directing the entry of judgment.

By a deed dated October 18, 1904, duly recorded on November 21, 1904, the defendant, the owner of a tract of land which he had laid out in lots, conveyed to the plaintiff two portions of said tract. In describing each portion, the eastern boundary thereof respectively was designated as a “fifty foot street.” There was not at the date of this conveyance, and had not been prior to that time, any public road or street along the eastern line of the land conveyed to the plaintiff. But it is quite clear, from the numerous cases cited in the opinion of the learned court below, that the deed referred to created an implied covenant on the part of the grantor “that there is a way corresponding with the one described in the deed; that so far as the grantor is concerned, it shall be continued and that the grantee, his heirs and assigns, shall have the benefit of it.” This doctrine is reiterated in the very latest utterance of the Supreme Court on the subject: Shetter v. Welzel, 242 Pa. 355. If the plaintiff may recover in the present action, she must show a breach of that implied covenant and that she has been deprived, in whole or in part, of the easement of way appurtenant to the land she had purchased. What is the nature of the alleged breach which she seeks to make the basis of her action?

On July 26, 1906, Baird, her grantor, and the present defendant, sold and conveyed to one Grant Taylor the fifty-foot strip of ground east of the land conveyed to the plaintiff, being the same strip over which he had covenanted she, the plaintiff, and her successors in title, should have ,an easement of way. When this deed was made the plaintiff’s deed had been recorded nearly two years. Of course her grantor had no power, by any act of his, to destroy or extinguish the easement which he had previously granted as an appurtenance to the land of the plaintiff. Her right to that easement was as well secured to her as her title to the land itself, the primary subject of her earlier conveyance. What her grantor could not do directly, he could not do indirectly by a conveyance to a subsequent purchaser who was visited with record notice of the earlier grant. His conveyance to that later purchaser, no matter in what form it was made, or what it purported to convey, could vest in the grantee nothing more than remained in the grantor after his earlier grant. Subject to the right of the plaintiff to continue to enjoy her easement of way, the defendant had a perfect right to convey the title to the strip that remained in him. More than this he could not and did not convey to the later purchaser. The mere execution of the second deed, therefore, was no breach of the implied covenant created in the earlier deed.

It is true it appears the grantee in the later deed, or his successor in title, has built a wire fence across the strip of ground which was subjected to the servitude of the plaintiff’s easement. Had that act been done against the will of the plaintiff and thus obstructed her use and enjoyment of her easement, we are not prepared to say she would not have a cause of action against the defendant; on the theory that by making a deed in fee to the later purchaser, her grantor had, as far as he could, brought about such injury to the plaintiff as would follow any exercise by the later purchaser of any right ordinarily incident to the title with which the defendant had invested him. But the testimony further discloses that before this fence was built, permission to erect it was sought and granted by the plaintiff. Apparently this was a recognition by the later purchaser of the right of the plaintiff to her easement. If what she granted was a mere permissive license, without any valuable consideration, for the construction of a fence, she may revoke it at her pleasure.

Under these circumstances we are of opinion the plaintiff’s action was premature. We are unable to see wherein there has been any substantial breach of the implied covenant created by the deed of her grantor that she should have an easement of way along the eastern side of her property. That being true, it is manifest the case was tried on the wrong theory and there was no legal foundation for a verdict in her favor, representing the difference in the value of her entire property with the easement appurtenant and without such easement. She has not lost it so far as this evidence discloses. If hereafter, by any act of her grantor, or of his later grantee or successors in title, there should be an attempt to deprive her of the use and enjoyment of her easement, the law will afford her ample remedy either to prevent such injury or secure compensatory damages.

For these reasons we agree with the learned court below that the record presents no adequate legal foundation to support the verdict which was rendered. As a consequence the action of the learned court below in entering judgment n. o. v. ought not to be disturbed.

Judgment affirmed.