Lauderbach-Zerby Co. v. Lewis

• Decision Date: 13 April 1925
• Docket Number: 67
• Citation: 283 Pa. 250,129 A. 83
• Parties: Lauderbach-Zerby Co. v. Lewis, Appellant
• Court: Pennsylvania Supreme Court

129 A. 83

283 Pa. 250

Lauderbach-Zerby Co. v. Lewis, Appellant

No. 67

Supreme Court of Pennsylvania

April 13, 1925

Argued March 24, 1925

Appeal, No. 67, Oct. T., 1924, by defendant, from decree of C.P. Indiana Co., June T., 1921, No. 7, on bill in equity, in case of Lauderbach-Zerby Company v. Linus M. Lewis. Affirmed.

Bill for injunction to restrain interference with railroad siding. Before LANGHAM, P.J.

The opinion of the Supreme Court states the facts.

Decree for plaintiff. Defendant appealed.

Error assigned was, inter alia, decree, quoting record.

The decree is affirmed at the cost of appellant.

W. M Mahan, with him S. J. Telford and S. M. Jack, for appellant. -- Title should have been established at law: Rhea v Forsythe, 37 Pa. 503; Delaware, etc., R.R. v. Coal Mining Co., 137 Pa. 314; Gorman v. McDermott, 42 Pa.Super. 516; Godino v. Kane, 26 Pa. Superior Ct. 596; O'Neil v. McKeesport, 201 Pa. 386.

The deed involved an exception and not a reservation: Mandel v. Gharing, 256 Pa. 121; Riefler v. Water Power Co., 232 Pa. 282; Kister v. Reeser, 98 Pa. 1; Arthur City Club v. McGeer, 198 N.Y. 609; Schmidt v. Lieberum, 54 Pa.Super. 500.

Geo. J. Feit, of Peelor & Feit, with him James W. Mack, for appellee. -- If plaintiff's title is clear, equity will grant relief although there has been no adjudication of the title at common law: Edgett v. Douglass, 144 Pa. 95; Miller v. Lynch, 149 Pa. 460; Manbeck v. Jones, 190 Pa. 171; Richmond v. Bennett, 205 Pa. 470; Wilson v. Cather, 214 Pa. 3.

The easement is an easement appurtenant, and not an exception, and the lineal descendant of James P. Carter, under the circumstances, had no title in the easement which he could convey: Moffitt v. Lytle, 165 Pa. 173; Kister v. Reeser, 98 Pa. 1; Tinicum Fishing Co. v. Carter, 61 Pa. 21.

Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

Carter, the owner of land located in the Borough of Indiana, laid it out in lots in 1870. We are concerned in the present case with numbers 13 and 14, which abutted on Water Street, located opposite the yards of the Pennsylvania Railroad Company. To the north, and separated by an alley, were tracts 16 and 17. In the conveyance to one Fiscus for the property in front, provision was made for a siding to be used by all interested, six feet being reserved for this purpose from the two pieces of land first named. In the deed executed, he directed that there should be reserved and excepted "a right-of-way along the boundary line between lots Nos. 13 and 14, above described, twelve feet in width, being six feet off the eastern side of lot No. 14, and six feet off the western side of lot No. 13, for the construction and operation of a certain railway track, to connect with the track of the Pennsylvania Railroad Company, running throughout the whole length of said lots Nos. 13 and 14, communicating with the lots and land lying north of the same, together with the right to the free and uninterrupted use and enjoyment of the said railway by himself, or any other person or persons whomsoever having authority under the said James P. Carter, his heirs or assigns, to use the same, to run cars, trucks, engines or any other species of conveyance over the same, without let or hindrance forever." The right-of-way was reserved by James P. Carter, his heirs and assigns forever. In the deed for the lots to the north of the alley, one of which is now owned by the defendant, it was set forth as follows: "Whereas, also a certain railway track has been located and built on the line between lots Nos. 16 and 17, which said railway was constructed for the benefit" of the grantor and others who might acquire interest as a result of conveyances, "the aforesaid railway shall not be interferred with nor obstructed, removed, or in any way injured, but the same shall remain open and free to such as might have the right of passage over the same, with locomotive engines, cars, trucks, etc., and the right-of-way of said railway is hereby reserved to him, the said James P. Carter, his heirs and assigns forever."

The siding was built and actually used for more than thirty years by the lot owners, whenever necessity required. Later, the defendant, Lewis, became the owner of the lots purchased by Fiscus from Carter, and, in 1919, obtained a conveyance from the only heir of the former owner of any rights he might have in the twelve-foot right-of-way. Thereupon, he erected a gate across the track, and when this was removed, installed another obstruction, fastening it with chains and lock. As a result, the present bill was filed, praying that further interference with the use of the siding be restrained. A preliminary injunction was granted, later made permanent after full hearing, and it is from this decree we have the present appeal.

The facts as stated, based on ample testimony, were found substantially as narrated above. Though many assignments of error have been filed, the real questions involved are but two. Was the provision for the right-of-way a reservation for the benefit of the purchasers of lots on the Carter plan, or was it the intent of the grantor to except this strip when he deeded it to Fiscus? Further, is the plaintiff entitled to an injunction without securing a preliminary determination as to his title in an action at law? The learned court below held also a right by prescription had been acquired by the continuous use of the siding for more than thirty years by all of the interested lot-holders, but a discussion of this...