Kanefsky v. Dratch Const. Co.

• Decision Date: 13 January 1954
• Citation: 376 Pa. 188,101 A.2d 923
• Parties: KANEFSKY et al. v. DRATCH CONST. CO. et al.
• Court: Pennsylvania Supreme Court

101 A.2d 923

376 Pa. 188

KANEFSKY et al. v. DRATCH CONST. CO. et al.

Supreme Court of Pennsylvania.

January 13, 1954

Proceedings by lot owners to enjoin defendants from using a driveway at rear of lots, and to reform deeds to such owners to delete right reserved by grantor to grant use of driveway to any person to whom it might convey all or any part of remaining ground owned by grantor. The Court of Common Pleas No. 5, County of Philadelphia, as of March term, 1952, No 2655, Frank Smith, P. J., reformed the deeds as requested and issued an injunction and defendants appealed. The Supreme Court, Nos. 154, 155, 198, January term, 1953, Horace Stern C. J., held that right to grant use of driveway was an easement as an appurtenance to other ground owned by grantor and deed of grantor's remaining three foot strip along driveway to adjoining landowner entitled such owner to use of driveway as appurtenance only to such strip and not to all other ground, but that trial court improperly deleted from deed the clause reserving to grantor right to grant use of driveway to persons who might thereafter purchase all or any part of remaining ground owned by grantor.

Affirmed as modified.

Bell, J., dissented.

David B. James, Jr., Henry Panfil, Moore, Panfil & James, Philadelphia, for appellants Parkman Homes, Inc., et al.

Simon Mustokoff, Philadelphia, for appellant Dratch Const. Co.

Charles M. Solomon, J. Victor O'Brien, Nathan L. Posner, Fox, Rothschild, O'Brien & Frankel, Philadelphia, for appellees.

Before STERN, C. J., and JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, Jj.

HORACE STERN, Chief Justice.

This controversy is over defendants' right to use a driveway which is located in the rear of plaintiffs' houses.

Dratch Construction Company, one of the defendants, owned a plot of ground in the City of Philadelphia constituting the easterly half of a square city block bounded by Rugby Street on the east, Phil-Ellena Street on the south, Woolston Avenue on the west, and Vernon Road on the north. Its property ran for a distance of about 729 feet along Rugby Street and extended in depth toward Woolston Avenue for a distance of approximately 115 feet. In 1948 it constructed on its land a 15 foot driveway extending between Phil-Ellena Street and Vernon Road and paralleling, at a distance therefrom of three feet, the boundary line between the Dratch property and the Woolston Avenue property to the rear. It then constructed 39 houses along the Rugby Street frontage and sold them to various home buyers, among whom were the present plaintiffs. The deed to each of the purchasers included the area of the driveway in the rear of the property conveyed but not the three feet beyond the driveway.^[1] Every deed granted the use of the driveway and also contained the following reservation in the habendum clause: ‘ And also reserving unto the said grantor, its successors and assigns the right and privilege of granting the use of the aforesaid driveway to any person or persons, corporation or corporations to whom all or any part of the remaining ground owned by it may at any time hereafter be sold and conveyed.’

The parties do not agree as to the reason for the retention by Dratch Construction Company of the three foot strip. Plaintiffs claim that Dratch told them it was for their protection so that the occupants of the Woolston Avenue properties in the rear would not be able to use the driveway but would have to build a separate one for themselves. How plaintiffs would be better protected in that regard by having Dratch Construction Company retain title to the strip instead of deeding it to plaintiffs is not apparent. Dratch denies having made any such statement. In 1950 Dratch Construction Company sold and conveyed the three foot strip to Cora E. Milligan, who then owned the remaining half of the block, by a deed which contained the following grant: ‘ Together with the free and common use, right, liberty and privilege of said fifteen feet wide driveway as and for a passageway, driveway and watercourse at all times hereafter forever, for any buildings hereafter built by the purchaser or nominee, his or her heirs and assigns on Woolston Avenue between Vernon Road and Phil-Ellena Street or on the Northwest side of Phil-Ellena Street between Woolston Avenue and said fifteen feet wide driveway, this use to be for its entire distance from Phil-Ellena Street to Vernon Road. * * * In 1951 Cora E. Milligan conveyed the three foot strip together with all the rest of her ground to defendant Parkman Homes, Inc., by a deed which contained this same grant of the right to use the driveway. Parkman Homes, Inc., and defendant Fishman and Park, builders, began constructing houses along Woolston Avenue and, in connection with that operation, started using the driveway to bring in the necessary building materials. Thereupon plaintiffs filed a complaint in equity seeking an injunction to restrain those defendants from using or trespassing on the driveway and praying also that plaintiffs' deeds be reformed by deleting therefrom the right reserved by Dratch Construction Company to grant the use of the driveway to any persons to whom it might thereafter convey all or any part of the remaining ground owned by it.^[2] The court entered a decree granting their prayer to reform the deeds and issuing the injunction requested. Dratch Construction Company, Parkman Homes, Inc., and Fishman and Park appeal from that decree.

Much argument pro and con is devoted by the parties to the question whether Dratch Construction Company was guilty of deception and fraud in its dealings with plaintiffs by concealing from them its allegedly real intention to enable, in some way, subsequent purchasers of lots on the Woolston Avenue front to make use of the driveway in common with the property owners on Rugby Street. In view of what we conceive to be the controlling issue in the case it is not necessary for us to discuss the question thus argued, nor whether, even if any such fraud was perpetrated, it can properly be imputed to the other defendants on the ground of constructive notice.

The real and determinative question is in regard to the interpretation of the reservation in the deed from Dratch Construction Company to plaintiffs of the right of the grantor to grant the use of the driveway to any persons to whom all or any part of the remaining ground owned by it might at any time thereafter be sold and conveyed. This language is not ambiguous, and it must therefore be construed according to its clear and literal terms and not as colored or amended by any oral conversations between Dratch and the plaintiffs or by any alleged intention of Dratch, secret or revealed. As was stated in Nallin-Jennings Park Co. v. Sterling, 364 Pa. 611, 615, 73 A.2d 390, 392, 20 A.L.R.2d 793, quoting from Witman v. Stichter, 299 Pa. 484, 488, 149 A. 725, 726:" ‘ In construing the grant or other instrument whereby the easement is created, the document itself, and that only, can, in the first instance, be looked at to discover the extent and nature of the agreement and the terms of the grant. If on the face of the document no doubt arises that the words are used in their primary sense, and if, read in that sense, they are plain and unambiguous, the matter is concluded.’ Gale on Easements, page 80. * * * The terms of the grant, as they can be learned either by words clearly expressed, or by just and sound construction, will regulate and measure the rights of the grantee. * * *" And in Liquid Carbonic Co. v. Wallace, 219 Pa. 457, 460, 68 A. 1021, 26 L.R.A.N.S., 327, it was said, quoting from Hopewell Mills v. Taunton Savings Bank, 150 Mass. 519, 23 N.E. 327,6 L.R.A. 249:‘ The intention to be sought is not the undisclosed purpose of the actor, but the intention implied and manifested by his act. It is an intention which settles, not merely his own rights, but the rights of others who have or may acquire interests in the property. They cannot know his secret purpose, and their rights depend, not upon that, but upon the inferences to be drawn from what is external and visible.’

It is first to be noted that, as all the parties agree, the reservation of the right to grant the use of the driveway to persons becoming the purchasers of other ground owned by the grantor was not the reservation of a right to grant an easement in gross but only an easement as an appurtenance to such other ground. Ulrich v. Grimes, 94 Pa.Super.Ct. 313, 316.

What was the ‘ remaining ground’ then owned by the Dratch Construction Company? It owned the Rugby Street half of the block, and it is obvious that, as it sold off lots from out of this area to home buyers and gave to each of them an easement for the use of the 15 foot driveway over the properties of the other purchasers, it was naturally obliged to reserve in each deed the right to grant to such other purchasers the use of the driveway over the lot of the grantee in that particular deed. In addition to the Rugby Street ground remaining in its ownership Dratch Construction Company, having retained title thereto, owned the three foot strip to the rear of the driveway; therefore the use of the driveway-for what such easement might be worth-became appurtenant to that strip aoso. No other ground was owned then, or indeed at any later time, by Dratch Construction Company, and therefore to no other ground than as thus stated did the reservation of the right to grant the use of the driveway apply.

Did the acquisition by Cora E. Milligan of the title to...