Kieffer v. Imhoff

• Decision Date: 01 January 1856
• Citation: 26 Pa. 438
• Parties: Kieffer versus Imhoff.
• Court: Pennsylvania Supreme Court

26 Pa. 438

Kieffer versus Imhoff.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Cumberland county.

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Wm. M. Penrose, Biddle, and Miller, for plaintiff in error.— A right of way over another's land arises either by grant, or prescription, which latter supposes a grant, or from necessity: 3 Kent 419. When the estate of the dominant and servient tenements becomes vested in the same individual, the right, when appendant, becomes merged in the fee simple: Woolr. on Ways, 4 Law Lib. 70; 2 Kent 449. Is there anything to prevent the operation of this principle? The fee of both met in James Bredin, and the right was extinguished by that union. The parties claiming under sheriff's sales of same date and writ, can have no equity as against each other. There is nothing of this easement in the levy, and that controls the subsequent proceedings: Grubb v. Guilford, 4 Watts 244; Hoffman v. Dawson, 2 Harris 25. The creditor sells the title as the defendant held it when the lien attached: Coulter v. Phillips, 8 Harris 156. If the levy and sale should have embraced this easement, the time to object was before the acknowledgment of the sheriff's deed: Heartley v. Beaum, 2 Barr 165.

It is no way of necessity. That arises only where a man grants land surrounded by his own: Dutton v. Taylor, Lutw. Rep. 1487. A way of necessity arises by grant express or implied; the necessity which implies it must be a strict necessity, not arising by the act of the party claiming the right: McDonald v. Lindall, 2 R. 492. When a union has taken place, a subsequent severance, either by act of the parties or act of law, will not revive the way unless it be of necessity: Whalley v. Thompson, 1 B. & P. 371; Woolrich on Ways 70.

"When two lots of ground are passing from a vendor at the same instant, it cannot be implied that he is making one servient to the other:" Maynard v. Esher, 5 Harris 222. Besides, a right of way cannot be reserved by parol: Collum v. Hocker, 1 R. 108.

Watts and Parker, for defendant in error.

The opinion of the court was delivered by LEWIS, C. J.

The rules of the civil law on the subject of servitudes are far more minute and precise than those of the common law. As they are, for the most part, founded on the principles of justice, and a careful consideration of the rights and convenience of civilized society, they are resorted to by the common law tribunals in cases not otherwise provided for. It is said by Chancellor KENT that they are of "permanent and universal application:" 3 Kent's Com. 436. The servitude of the civil law has a much wider signification than the easement of the common law, comprehending many rights, which in the latter fall under the division of profits à prendre. But a right of way, the particular privilege claimed in this case, is designated as an easement in one and a servitude in the other, and therefore the rules of the civil law may have a just application to the question before us. A servitude is defined to be "a charge imposed upon one heritage for the use and advantage of an heritage belonging to another proprietor:" Code Civile, art. 637. It is obvious, therefore, that if the dominant and servient tenements become the property of the same owner, the exercise of the right, which, in other cases, would be the subject of an easement, is, during the continuance of his ownership, one of the ordinary rights of property only, which he may vary or determine at pleasure. The inferior right of easement is merged in the higher title of ownership: 2 Bing. 83; 9 Moore 166; 3 Bulst. 340. In the common law it is said to be extinguished by unity of title. In the civil law it is lost by "confusion." But under both systems it is nothing but the name that is gone. The right remains as before, under a higher title; and upon a subsequent severance of the estate, by alienation of part of it, the alienee becomes entitled to all continuous and apparent easements which have been used by the owner during the unity of the estate, and without which the enjoyment of the several portions could not be fully had; for no man can derogate from his own grant: 2 Martin 214; 3 Kent 434, note. The term servitude is but a metaphorical expression borrowed from personal servitude; the charge is entirely attached to real estate, and not to the person: servitutem non hominem debere sed rem: 3 Kent 434; Dig. 8, 1, 15; Domat 1016. The owner may undoubtedly alter the quality of the several parts of his heritage; and if he does so, and afterwards alien one part, it is but reasonable that the alterations thus made, if palpable and manifest, and obviously permanent in their nature, shall go to the purchaser in the condition in which they were placed, and with the qualities attached to them by the previous owner. Easements which are apparent and continuous are not merely those which must necessarily be seen, but those which may be seen or known on a careful inspection by a person ordinarily conversant with the subject: Gale & Whatley on Easements 40. Servitudes which are extinguished by unity of title, do not in general revive upon severance; but where they are apparent and obviously continuous, they do. The disposition made by the owner of both estates, is held to be equivalent to a title: La destination du perè de famille vaut titre: Civil Code Louisiana, art. 808; Code Civil, art. 692; Pardessus Traité des Servitudes, s. 288; Gale & Whatley on Easements 40. Although the service which one estate derived from the other was nothing more than "destination du père de famille," or "the disposition of the owner," so long as the heritages belonged to the same person, it becomes a servitude as soon as they pass into the hands of different proprietors: Pardessus Traité des Servitudes, s. 288; Gale & Whatley 38.

These doctrines of the civil law have been fully recognised by the highest authorities in our own jurisprudence. In a very early case it was held that the plea of unity of possession was not sufficient to extinguish a right to a gutter which had existed by custom, and that the plea to be available must aver that the former owner, before alienation, destroyed the gutter: 11 Harris 7, 25 pl. 6. In another case of approved authority, it was held by all the court on demurrer, that if one erect a house, and build a conduit thereto in another part of his land, and convey water by pipes to the house, and afterwards sell the house with the appurtenances, excepting the land, or sell the land to another, reserving to himself the house, the conduit and pipes pass with the house, because they are necessary and quasi appendant thereto. So, if the lessee for years erect a conduit, and the lessor on the expiration of the...