*266Dissenting Opinion by
Montgomery, J.:Plaintiff, Margaret Borgel, fell on a driveway which, ran in the rear of properties in the 5900 block of Lawn-dale and Bingham Streets in the City of Philadelphia. Plaintiff alleged that the cause of her fall was a certain “large hole, obstruction, depression, irregularity or defect” in that part of the driveway which was in the rear of property known as 5950 Lawndale Street, owned by Homer and Jane G. Hoffman, whom she sued for damages.
Thereafter the Hoffmans filed a complaint against Leo D. Canfield et ux., Paul Worstall et ux., Grant H. Afflenbach et ux., Benjamin F. Richardson et ux., and and Dennis Haggerty et ux., averring that they “did own, control and maintain the said common driveway and failed to maintain the same in a reasonably safe condition for public travel thereon.” By way of answer, the Richardsons and the Canfields denied that they owned, controlled or had the responsibility to maintain said driveway and directed interrogatories to the Hoffmans, seeking facts in support of their averment that the additional defendants owned, controlled and maintained the common driveway. The Hoffmans answered by referring to the deeds which the Canfields and the Richardsons had received when they purchased their properties (which deeds have not been submitted to us).
I note, however, that in the motions for summary judgment the Canfields and the Richardsons deny that any duty to maintain the driveway is expressed or implied in any easement in their deeds. However, they admit in their briefs filed on this appeal that they “each own homes which abut upon the common driveway, each residence is two properties removed from the situs of the alleged accident.”
In answer to the motions for summary judgment the Hoffmans denied that the Canfield and the Richardson *267deeds do not impose the alleged duties upon them and averred also “that such duty arises because of the dominant nature of additional defendants tenement in relation to Original defendants tenement which is servient to the property of additional defendant.”
On the basis of this record, summary judgment was entered for the Richardsons and the Canfields, from which this appeal by the Hoffmans followed.
I note also that all of the abutting property owners on this driveway are not joined as additional defendants, merely those abutting thereon in the area where the alleged defective condition existed. In this regard, it would appear that the plaintiff is also an abutting property owner, for she gave her address as 5932 Lawn-dale Street. Furthermore, there is nothing in this record to show how or when or for what purpose this common driveway was established, which may be of grave importance in resolving this dispute. Although the plaintiff alleges the driveway should have been maintained in a safe condition for public travel, the record is void of any facts to permit a determination of whether it was private or public. The effect of the decision by the lower court is to make the Hoffmans’ property primarily if not solely liable for the damages suffered by plaintiff’s fall, which by analogy, is the same liability imposed on a property owner for accidents occurring on the sidewalks of same used by the public generally, without first determining whether this is a private or public way.
Although the Courts of this Commonwealth have not spoken specifically on the liability of servient property owners in cases of private easements, the courts of other jurisdictions have done so. Without any conflicts that I am able to find, the law is as expressed in 25 Am. Jur. 2d, Easements and Licenses §85, “It is not only the right but the duty of the owner of an ease*268ment to keep it in repair; the owner of the servient tenement is under no duty to maintain or repair it, in the absence of an agreement therefor.”
It appears from the lower court’s opinion that its decision is based on the argument that the Hoffmans and every other abutting property owner are primarily responsible for that part of the driveway lying within the area owned by each because they are in a better position to observe and correct any defects therein; and also because abutting owners some distance removed from the defective area may never have occasion to cross and see the defects. This is merely conjectural and an untenable argument and is contrary to the rule previously expressed. No cases are cited by the lower court in support of its opinion nor have any been supplied on this point; i.e., that each joint owner of a common driveway is primarily liable for that part lying within his property, the servient tenement.
Reed v. Allegheny County, 330 Pa. 300, 199 A. 187 (1938), cited by appellant, in my opinion, demonstrates the need to examine closely and fully the factual relationship between the parties to an easement before determining their rights. This was not done sufficiently in this case to enable the lower court to come to a proper conclusion. Furthermore, summary judgments should be entered only when there is no genuine issue of fact present. Pa. R. C. P. No. 1035. I find numerous questions of fact, which I think should be determined at trial.
I would reverse the summary judgments entered in favor of the Canfields and the Richardsons, with a procedendo.
Therefore, I respectfully dissent.
Jacobs, J., joins in this dissenting opinion.