Brady v. Yodanza

PRICE, Judge:

This case presents the sole question of whether appellees have the use of a thirty-foot easement over separate pieces of land owned by appellants. The Westmoreland County Court of Common Pleas concluded that such a right existed, and consequently denied appellants’ prayer for injunctive relief. We disagree and reverse that order.

The salient facts of the case are not in dispute. It is, rather, their interpretation vis-a-vis the intent of the parties and settled principles of property law that is the source of contention. Succinctly, the facts are as follows. Appellants Robert H. Brady, Jr. and James A. Spark own separate but adjoining tracts of land in Sewickly Township, Westmoreland County. Abutting appellants’ property to the east is a series of tracts owned by appellees. The property of all parties to this action was originally purchased from a pair of common grantors, John A. Filapose, et ux., and John J. Novocek, et ux., both of whom continue to own property to the west of appellants. Mr. Spark’s predecessor in title purchased his tract on July 20, 1967, while Mr. Brady acquired his in August of that same year. One of appellees, Ronald Bramhall, purchased his piece of real estate on August 7, 1967, with the remaining appellees coming into possession between September of 1968 and June of 1971. All parcels of ground owned by appellees front on a fifty-foot right of way which extends eastward and connects to a public thoroughfare, Lowber Road. This right of way terminates on the eastern edge of appellants’ property at the junction of appellants’ separate tracts. Appellees now contend that they have the use of a thirty-foot easement (fifteen feet on the land of each appellant), extending west from the terminus of the fifty-foot right of way, across appellants’ land, bisected by the mutual border, and ending at another township road which eventually connects with the Realton-Suttersville Road. Acting on this belief, appellees on March 5,1976, entered upon the easement in order to effect certain improvements. On March 9, 1976, appellants filed a complaint in equity praying that appellees be enjoined from further construction. Following an evidentiary hearing, the court below denied appellants’ request on July 7, 1976, with exceptions to this order being subsequently denied by the court en banc.

Appellees do not claim that this easement arises out of necessity or by implication, but from an explicit reservation made by the common grantors and passed to appellees by operation of law. Confronted with such an argument, we are forced to examine the pertinent language in the various deeds, bearing in mind two well accepted principles: “The primary object in the interpretation of any written instrument is to ascertain and effectuate the intention of the parties.” Hess et al. v. Jones, 335 Pa. 569, 572, 7 A.2d 299, 300 (1939); and “ ‘The law is jealous of a claim to an easement, and the burden is on the party asserting such a claim to prove it clearly.’ ” Becker v. Rittenhouse, 297 Pa. 317, 325, 147 A. 51, 53 (1929).

Inspection of the deeds reveals first that the contested easement is mentioned only in the deeds to appellants when it is reserved by the common grantors. The pertinent language in both deeds is identical:1

“Excepting and Reserving unto the parties of the first part herein, their heirs and assigns, the full, free liberty and right at all times hereafter forever, to have and use a passageway 15 feet in width along the Southerly side of the land hereinabove described for any and all purposes connected with the use and occupation of other land now owned by the parties of the first part adjoining the land hereby granted.”

All parties to this appeal agree that in none of the deeds to appellees is the thirty-foot easement mentioned either explicitly or by necessary implication.

Second, all deeds to appellees establish the existence of the fifty-foot right of way, although the method of the grant differs, i. e., in certain deeds it is expressly established by course or distance description, or by attaching a survey, while in others it is conveyed by describing the land as bordering on an unnamed fifty-foot street.

Third, each deed to appellees contains identical appurtenance and habendum clauses. The appurtenance clause reads as follows:

“Together With All and Singular the improvements, ways, waters, watercourses, rights, liberties, and privileges, hereditaments and appurtenances whatsoever thereunto belonging or in any wise appertaining, and the reversions and remainders, rents, issues and profits thereof; and all the estate, right, title, interest, property, claim, and demand whatsoever of the said parties of the first part, in law, equity or otherwise, howsoever, in and to the same of every part thereof.”

The habendum clause reads thusly:

“To Have and To Hold and the said piece or parcel of land together with the hereditaments and premises hereby granted or mentioned, and intended so to be, with the appurtenances, unto the said parties of the second part, their heirs and assigns, to and for the only proper use and behoof of the said parties of the second part, their heirs and assigns forever.”

Given these facts, we do not believe that the common grantors intended to convey to appellees the thirty-foot easement which they had specifically reserved. In Fidelity Mortgage Guarantee Co. v. Bobb et ux., 306 Pa. 411, 160 A. 120 (1932), our supreme court reiterated that,

“[i]t is a familiar rule of construction that ‘the express mention of one thing in a grant implies the exclusion of another.’ 18 C.J. 260, § 216. This principle is exemplified in the rule that, where a road is expressly granted and its precise location and limits are fixed and defined by deed, no easement of another road or right of way is created by implication, except when the intention of the purpose that such an easement should be created clearly appears: Bosch v. Hoffman, 42 Pa.Super. 313.” Id., 306 Pa. at 418, 160 A. at 122.

See 23 Am.Jur.2d Deeds § 170 (1965) (“if a deed covers particular or express matters, the intention may be inferred to exclude other subjects which the general records of the deed may have been sufficient to include.”)

We believe this principle to be applicable in the instant situation. In all the deeds, only the fifty-foot easement was clearly granted, either expressly or by implication from the description of the conveyed tracts. Indeed, none of these deeds offers even the slightest hint that an easement is being extended from the property conveyed in any direction other than east, i. e., along the fifty-foot right of way connecting to Lowber Road. Although it was certainly within the power of the common grantors to convey the thirty-foot easement which they had reserved, there is simply no indication that such was their intention. If this had in fact been their design, it would have been a simple matter to include a description of the thirty-foot easement. It stretches credulity to conclude that had the common grantors actually wished to transfer the contested easement, they would have specifically reserved their right to it in a deed in July 1967, yet fail to mention it in a deed later in July and August of that same year. The terms of the grant, as they can be learned either by express words or sound construction, will regulate the rights of the grantee. See, e. g., Kanefsky v. Dratch Construction Co., 376 Pa. 188, 101 A.2d 923 (1954). Read in this light, we cannot believe that appellees received the thirty-foot easement in their conveyances.

Nevertheless, appellees argue that intent is here not the controlling factor. Rather, appellees reason that they acquired the easement by operation of law pursuant to the Act of April 1, 1909, P.L. 91, § 2, as amended, 21 P.S. § 3, which states:

“All deeds or instruments in writing for conveying or releasing land hereafter executed, granting or conveying lands, unless an exception or reservation be made therein, shall be construed to include all the estate, right, title, interest, property, claim, and demand whatsoever, of the grantor or grantors, in law, equity, or otherwise howsoever, of, in, and to the same, and every part thereof, together with all and singular the improvements, ways, waters, watercourses, rights, liberties, privileges, hereditaments, and appurtenances whatsoever thereto belonging, or in anywise appertaining, and the reversions and remainders, rents, issues, and profits thereof.”

In point of fact, statutory citations are hardly necessary, as our courts have continually recognized that appurtenant easements require no deed or writing to support them, but pass instead by a conveyance of the estate to which they are appurtenant. E. g., Piper v. Mowris, 466 Pa. 89, 351 A.2d 635 (1976); Lauderbach-Zerby Co. v. Lewis, 283 Pa. 250, 129 A. 83 (1925); Rusciolelli v. Smith et ux., 195 Pa.Super. 562, 171 A.2d 802 (1961); Pad v. Shipley, 166 Pa.Super. 374, 71 A.2d 844 (1950). While the black letter law is clear, it is by its own language applicable only to easements appurtenant to the lands conveyed. Instantly, we do not believe that such a prerequisite is present. In order for an easement to be appurtenant, Restatement of Property § 453 (1944), requires that it must have been created for the purpose of benefitting the owner or possessor of the dominant estate in his use of the land. Comment (a) to that section notes that whether an easement was intended to be appurtenant, “may appear from the language by which it was created construed in the light of the circumstances under which the language was used, or may be implied from the circumstances under which it was created. . . . ”

The present circumstances would appear to indicate that while the land of appellants is indeed a servient estate, the dominant estate is not that property owned by appellees, but the remaining property owned by the common grantors lying to the west of appellants’ land. We agree with appellants that although no evidence appears of record that the common grantors ever improved the easement, neither was any evidence adduced indicating that they in fact did not use their reserved right. Even though the burden is on appellees to demonstrate that they have a positive right to the easement, we have been presented with no facts supporting such a claim.

The order of the court below is therefore reversed, and appellees are hereby enjoined from any further attempts at improving the thirty-foot easement across appellants’ property.

SPAETH, J., files a dissenting opinion in which HOFFMAN, J., joins.

JACOBS, former President Judge, did not participate in the consideration or decision of this case.

1 The sole difference in the description is the substitution of “Northerly side” in the Spark deed.