McDonald v. Lindall

• Citation: 3 Rawle 492
• Parties: M'DONALD v. LINDALL.
• Decision Date: 30 March 1827
• Court: United States State Supreme Court of Pennsylvania

3 Rawle 492

M'DONALD v. LINDALL.

Supreme Court of Pennsylvania.

March 30, 1827

IN ERROR.

The lien of a mechanic under the act of 17th March, 1806, and its supplements does not extend beyond the description of the property in the claim filed.

Where therefore a claim is filed against a building, and the lot on which it is erected, without more, the lien does not extend to the adjoining ground as appurtenant to the building.

A right of way from necessity extends to a single way. It is always from strict necessity and this necessity cannot be created by the party claiming the right. It never exists where a man can get to his property through his own land however inconvenient the way through his own land may be.

How far the concealment or not giving notice of a claim to land, or to a right of way through another's land, will prevent the subsequent assertion of such claim.

WRIT of error to the Court of Common Pleas of Allegheny county.

OPINION

HUSTON J.

The plaintiff here, was plaintiff below, and brought this ejectment to recover part of lots Nos. 177 and 158, in the city of Pittsburg.

The facts given in evidence, and not disputed, made the following case:-- William Hamilton in 1817, was the owner of lots Nos. 176, 177, 158 and 159, in the city of Pittsburg. The four lots adjoined, and formed together a parallelogram. The two first fronted on Front street, and the two last on Water street. Nos. 176 and 159 were exactly opposite each other and extended from Front to Water street. No. 177 adjoined No. 176, and No. 158 adjoined No. 159, and Nos. 177 and 158 were exactly opposite each other, and extended from Front to Water street. William Hamilton contemplated building a house for a tavern, and very extensive back buildings, stables, & c and in 1817, contracted with Paul Anderson to erect all the buildings. The articles of agreement referred to a plan.--This plan called No. 1, was not produced; it was agreed that a great part of it was relinquished. The walls and roof of the house and a back building, were erected by Anderson. These were occupied and floored for a counting and warehouse by W. B. Foster, under a lease from Hamilton. The house occupied the whole front of lot No. 176 on Front street. The back building and a yard before it occupied the residue of lot No 176, and also covered a part of Nos. 177, 158 and 159. From this building there was then no passage to Front street, except through the house, or over a part of lot No 177, but the whole of lot No. 159, not covered by this building, was unbuilt on, and might in whole or part, have been used as a passage from this building to Water street.

Anderson on the 20th of February, 1818, filed his lien as hereinafter recited, and along with it, the articles of agreement before mentioned, with Hamilton, and his account. The articles referred to a plan, but no plan was filed. In fact, that plan is agreed to have been abandoned by both parties.

Soon after this lien was filed, M'Clurg obtained a judgment against Hamilton; Beldane another judgment, and Ansheets & Rham another. Anderson purchased these three which were next in priority to his mechanic's lien. After these, many other judgments were obtained by other creditors of Hamilton, who became totally insolvent, and died in 1820.

Anderson sued a scire facias on his lien as a mechanic, and obtained judgment and issued execution, on which he made a levy in these words,--" Levied on all the right, title and interest of William Hamilton to a large brick ware-house fronting on Water street, joining John Kelly, and occnpying a part of lots Nos. 176, 177, 158 and 159, subject to a ground-rent of two hundred dollars." A levy was a lso made on M'Clurg's (now become Anderson's ) judgment on the four lots, in the words hereinafter recited.--

It was proved by Mr. Neville, then sheriff, that both these levies were made under the direction, and agreeably to the direction of Anderson and his attorney.

No. 83 to August, 1822, was a venditioni exponas on the mechanic's lien judgment; the advertisement conformed to the levy, and on it a sale was made on the 6th of June, 1822, to Anderson, and a deed acknowledged 15th of August, 1822.

No. 85 to August, 1822, was a venditioni exponas on Anderson's judgment in the name of M'Clurg; the advertisement conformed to the levy, and on it a sale was made on the 10th of June, 1822, of lot No. 159, to Anderson, for three hundred and fifty dollars; and of lot No. 177 for five hundred and sixty dollars, and of lot No. 158 for four hundred dollars, to John M'Donald the plaintiff. Deeds were executed and acknowledged to the purchasers the 17th of August, 1822. It was proved that Anderson was present and directed the sale, and the order in which the lots should be sold; that he bid for each of the beforementioned lots at the sale, and bought one, viz. No. 159: That during this time, he made no mention of any claim to any of the beforementioned lots; --but when lot No. 176 (covered by the house and back building and a fenced yard) was set up, he refused to bid, and said it was his own already.--I shall recur to the testimony on this point again. Anderson called on the sheriff to return his writs: the money was paid; Anderson claimed it on his judgment beforementioned:--The court ordered it to be paid first to a ground-rent, and after, according to priority of lien, and Anderson got it,--whether on his mechanic's lien or judgment did not appear.

Soon after Anderson claimed the whole of lots Nos. 177 and 158, as well as Nos. 176 and 159, by virtue of the sale to himself on the mechanic's lien. M'Donald brought an ejectment, and the jury found a verdict in these words; " We find for the plaintiff the western part of lots Nos. 177 and 158, bounded by Water street and by lot No. 178 and lot No. 157 and Front street, up to a four feet wide alley running through from Water street to Front street as marked on the diagram filed; the alley to be forever in common between the parties; with six cents damages, and six cents costs, and for the residue we find for the defendants."

This verdict and the charge of the late President of the Common Pleas, which was repeated by the President on the present trial, are thus necessarily noticed here. Judgment was entered on that verdict. The present suit is brought to recover the whole of the alley and eleven feet on the eastern side of it, being part of lot No. 158, which by the former verdict and judgment, were given to Anderson.

Many points were raised and discussed during the argument, not necessary to be decided, and which therefore we do not decide. The acts of assembly under which this question arises, have been extended to many parts of the state. Many questions have arisen, and more will arise. When a point arises directly in a cause, it may be expected it will be more fully considered by the counsel, than when it is started incidentally and is not material to the cause trying.

The doctrine of what passes as an appurtenant, and of a way from necessity, and the effect of a sale by one, or in the presence of and for the benefit of one who claims a right in the property sold and conceals such claim from the purchaser must, to a certain extent, be considered. Strictly speaking, land cannot be appurtenant to land, or to a messuage, of which land, being the substratum, is the principal part in the consideration of law. But so long ago as the time of Plowden, it was decided that the intention of the parties, and the meaning in which words were used, should govern, and that the expression " " appertaining to the messuage" shall be taken in the sense of " usually occupied with the messuage," and where the quantity of land is mentioned, is good in a plea, & c. Plowden, 85. 171. b. The word messuage, or the word...