Harvey v. Vandegrift

• Decision Date: 07 May 1879
• Citation: 89 Pa. 346
• Parties: Harvey <I>versus</I> Vandegrift.
• Court: Pennsylvania Supreme Court

Page 346

89 Pa. 346

HarveyversusVandegrift.

Supreme Court of Pennsylvania.

March 7, 1879.

May 7, 1879.

March 7th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas of Bucks county: Of January Term 1875, No. 30.

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Harman Yerkes and George W. Biddle, for plaintiffs in error.—The extent of the plaintiff's right of fishery is defined by the deed from Paxson and Vandegrift to Tyson, in 1838, and it was the duty of the court to say what this was, and not to leave it to the jury to find from parol evidence.

The rule which allows extrinsic evidence to explain "the extent of the subject sold," has no application "when a subject-matter exists," which satisfies the terms of the instrument of conveyance;Doe d. Chichester v. Oxenden, 3 Taunt. 147; Starkie on Evidence 692, 693.

Was it intended by the insertion of the words "the fishery as it has heretofore been conducted," to enlarge the grant, and give to the grantee a greater "right of fishing" than had been conveyed to the grantors as appurtenant to the lands granted to them?

It is contended here that there was no such intention; that the words "as it has heretofore been conducted," refer not to the extent of the fishery, which had already in the previous deeds been defined, but to the mode of exercising this right.They were intended to limit the generality of the language in the prior grant by confining the right to that particular manner in which the fishery had "theretofore been conducted."

G. & H. Lear, George Ross and L. L. James, for defendant in error.—In the deed of Paxson and Vandegrift to Tyson, no attempt is made whatever to describe the fishery, and in fact no reference to it occurs at all, excepting toward the end of the habendum the word fishery is once used.In the deed of Tyson and wife to Vandegrift, in 1841, the conveyance sets forth, inter alia, "together with all the right of the said Charles Tyson in the fishery and the privilege thereto belonging, as it has heretofore been conducted."Certainly nothing appears in this clause by which the extent of the fishery referred to could be discovered from an examination of the deed itself, unless it is that the intention of the grantor was to convey a right of fishery to be enjoyed to the extent that he and those under whom he claimed have previously enjoyed it, which necessarily involved an inquiry of fact, to be proved by the testimony of those living witnesses who had conducted the fishery prior to the date of the grant.

It was proper, therefore, to show by extrinsic evidence what was intended by the grant: Collins et al. v. Rush, 7 S. &R. 147;Scott v. Sheakly, 3 Watts 50;Hoffman et al. v. Danner etal., 2 Harris 25;Tiley v. Moyers, 7 Wright 404;Lycoming Ins. Co. v. Sailer, 17 P. F. Smith 108; Broom's Maxims 300

Mr. Justice PAXSONdelivered the opinion of the court, May 7th 1879.

The plaintiff below is the owner of a tract of three and a quarter acres of land on the river Delaware, in Bucks county, a few miles below Bristol.He is also the owner of certain rights of fishery appurtenant to said land.The defendant owns the tract adjoining on the east, and in the year 1870 built a wharf in front of his land, extending out into the river over one hundred feet below low-water mark.The plaintiff contends that this wharf obstructs his right of fishing, and brought this action in the court below to recover damages therefor.

No servitude upon the land of the defendant appears in his line of title.No reference to it is found in his own deed or in the mesne conveyances from Amos Wilson.By ascending the stream of title, however, until he reached John Paxson and Levi D. Vandegrift, under whom both parties derive title, he would have ascertained that when they conveyed to Charles Tyson the fourteen-acre tract known as "Dunk's Ferry,"they included the fishery in controversy, by the following description: "Together with all our right and privilege of the fishery as it has heretofore been conducted, and landing the ferry-boats on the bank of the said river to the distance of twenty-eight perches down the same below the place of beginning."This fourteen-acre tract had a river front of about five hundred and fifty feet, but only extended fifteen feet below high-water mark.Tyson conveyed three and a quarter acres of said tract to John Vandegrift, including the entire front between low-water mark and fifteen feet below high-water mark.The deed from Tyson to Vandegrift contained the following in reference to the fishery: "Together with all the right of the said Charles Tyson in the fishery and the privileges thereto belonging, as it has heretofore been conducted, also the privilege of landing the ferry-boats on the bank of the said river to the distance of twenty-eight perches down the same, below the place of beginning," &c.

In the prior conveyance by the heirs of McElroy to Paxson and Vandegrift of the large tract of which the premises of both the plaintiff and the defendant form a part, the fishery is described as follows: "Together with the right and privilege of fishing and landing the ferry-boats on the bank of the said river to the distance of twenty-eight perches below the place of beginning."The twenty-eight perches below was land formerly belonging to Corvasier, and was so referred to in the grant of the fishery contained in the deed of these premises from John Kidd to John McElroy.

Assuming that the defendant was affected with notice of the grant of the fishery as set forth above, we are led to consider the extent of said grant.Just here the difficulty in the case arises.There is nothing in the language employed that in terms imposes any servitude upon the land of the defendant....