Bierkamp v. Rubinstein

Opinion by

Mr. Justice Eagen,

This is an action for a declaratory judgment brought by appellants to determine the easement rights of certain neighboring property owners, the defendants below, in a 10-foot wide alley leading from the rear of appellants’ premises which front on Lancaster Avenue, Radnor Township. The action also seeks a declaration of the responsibility of the respective parties for repair and maintenance of the said alley.

The alley (hereinafter the side alley) is located on the westerly side of the appellants’ premises and extends to the front thereof on Lancaster Avenue. All of the properties involved extend southwardly from Lancaster Avenue about 200 feet to what is now School Lane, a public street. Prior to 1949, however, there was a 10-foot alley (hereinafter rear alley) which ran along the rear of all the properties and connected with the side alley, which in turn connected with Lancaster Avenue, on which all the respective properties fronted. At one time, these two alleys together provided the only means of egress and ingress to and from the rear of the respective properties and Lancaster Avenue.

Both of these alleys had their genesis as easements by virtue of a 1904 deed which provides as follows: “Together with the free and common use, right, liberty and privilege of said 10 feet wide alley or roadway leading westward and communicating with another 10 feet wide alley or roadway leading northward along the east line of land of A. Lienhardt into Lancaster Avenue in common with the owners or occupiers of lots abutting thereon on the north and east.”

In 1949, the owners of all the premises on which the 10-foot wide rear alley abutted conveyed by deed of dedication to the Township of Radnor their interest therein as well as ten additional feet from the rear of their premises to be used as a public road. Radnor Township intervened in these proceedings contending that, since it had acquired the rear alley, it had the right to the use of the side alley also because the grant of the right of way to the township implied a conveyance of that easement also. The court below took testimony and made findings of fact among which was the finding that the side alley had been openly used for the past 50 years by members of the public as well as by the dominant and servient tenements. It ruled that the Township of Radnor, by the above referred to deed of dedication, as a grantee of a portion of the premises of the several dominant tenements, obtained the same rights as its grantors had in the side alley. It then further ruled that the township acquired a right “on behalf of the public” to use the side alley and that, as a consequence, the township was responsible for its maintenance. There was no finding by the court below that the use by the public was adverse. Indeed, during the hearing, counsel for the township expressed doubt that any public prescriptive right in the side alley could be shown. Yet the effect of the judgment entered below was the creation of an easement of public use in a private alley.

In our opinion, the deed of dedication to Radnor Township did not operate to confer upon the general public an easement to use the side alley. That easement was appurtenant to the particular premises of the grantors in the deed of dedication and was limited to those named in the deed creating the easement and those having occasion to visit them. McDermott v. Reiter, 279 Pa. 545, 124 A. 187 (1924), and Percy A. Brown & Co. v. Raub, 357 Pa. 271, 54 A. 2d 35 (1947). An easement appurtenant, of course, is assignable and divisible as the dominant tenement may be divided and transferred and the owner of any part of the dominant tenement may claim the easement, provided the easement can be enjoyed as to the separate parcels without additional burden. Rusciolelli v. Smith, 195 Pa. Superior Ct. 562, 171 A. 2d 802 (1961), and 25 Am. Jur. 2d, Easements §96 (1966).

Therefore, even if the deed of dedication be construed as transferring to the township an easement to the side alley as an appurtenance to the right of way granted by the property owners along the rear of their properties, the easement so acquired by the township is limited to use by the township for the purposes for which the original easement was created. That purpose was access to the dominant tenements to the rear of their properties by way of the side alley. To give the general public through the medium of the township the right to use the alley for any and all purposes would greatly increase the burden of the easement upon the servient tenement. Hence, the lower court erred in decreeing that the township acquired a right “on behalf of the public” to use the side alley by virtue of the deed of dedication.

However, if appellants or their predecessors in title have permitted the public to adversely and continuously use the side alley for more than 21 years, they may have made it a public right of way as effectively as if it had been laid out by the proper authorities. Wampler v. Shenk, 404 Pa. 395, 172 A. 2d 313 (1961). This, however, raises an issue of a public prescriptive right arising out of public adverse user. This issue was not squarely faced at the hearing by the parties nor directly passed upon by the court below. In the absence of a finding by the court below as to whether the use by the public was adverse or not, we cannot pass on this question. In addition, a declaratory judgment proceeding does not lie to determine whether or not the public has acquired an easement by prescription especially where such determination will involve disputed questions of fact. A declaratory judgment should not be entertained where there is a dispute of facts. Mains v. Fulton, 423 Pa. 520, 224 A. 2d 195 (1966). Also an action for declaratory judgment is not an optional substitute for established, available and appropriate remedies and should not be entertained if another available and appropriate remedy exists. Greenberg v. Blumberg, 416 Pa. 226, 206 A. 2d 16 (1965); Lakeland Joint School District Authority v. Scott Township School District, 414 Pa. 451, 200 A. 2d 748 (1964). It is clear to us that another such remedy exists to resolve the issue presented by this ease. Hence, an action in declaratory judgment does not lie.

Judgment vacated and proceedings are dismissed.