Wissler v. Hershey
| Decision Date | 01 June 1854 |
| Citation | 23 Pa. 333 |
| Parties | Wissler versus Hershey. |
| Court | Pennsylvania Supreme Court |
2. The position of the Court, that the right of way from necessity should have been set out in the narr., is in conflict with precedent and authority: 2 Chitty 808. In 2 Saunders' Rep. 114, note, it is held that the plaintiff need not declare how he is entitled to a right of way. Also 1 Chitty 382; 2 Id. 800, note y.; 1 Tidd 396; 1 Vent. 274. If the plaintiff had been defendant and claimed a right of way from necessity, it might have been necessary to plead it: 3 Chitty 1125.
3. The doctrine of estoppel is not applicable. The right by prescription is as valid as if secured by deed duly recorded; and silence will not estop him whose deed is of record: 4 Harris 364, Knauff v. Thompson; 10 Barr 531. The right of way was not exposed to sale with the farm, and the purchaser might have become informed as to it.
Franklin, with whom was Fordney, for defendant in error.— The matter excepted to in the second assignment is not in the answer to the fourth point, but is in the general charge to which no exception was taken.
A right of way from necessity is not an appurtenance, but an easement arising by operation of law, and it should be pleaded: 3 Stephens Nisi Prius; Woolwich on Ways 15-23; Id. 72; 19 Wend. 507. The declaration is not general. In it is claimed a specific right of way through the defendant's barn-yard. This specific right could arise either from grant or prescription, and not from necessity unless the defendant declined or refused to designate a track over his farm. A recovery under this declaration would establish the right of way through the barn-yard; whereas a way by necessity might be over some other part of the farm less inconvenient to the defendant: 4 East 107.
As to 3d and 4th assignments, there was no reservation of a right of way in the conditions of sale by the administrators. It was not specified in any deed or record, and the ground in the field over which it was claimed, was ploughed at the time of such sale in 1847. Michael Kauffman should have given notice of it: 3 Rawle 492; 10 Barr 530; 7 Watts 100; 4 W. & Ser. 323; 5 Id. 302.
6. There was nothing in the circumstances in evidence which could be relied on as notice to a purchaser, or to lead him to inquiry as to the existence of a road.
In this case the following points arose and were argued and determined by this Court.
1. When land is conveyed, which the vendee cannot reach without going over other land of the vendor, the right of way is implied,...
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...1389, 1391 (1985) (stating that an easement by necessity is enforceable for only so long as the necessity remains) (citing Wissler v. Hershey, 23 Pa. 333 (1854)); RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.3 (same). 12. It may be noted that, if an easement may be implied based on prior......
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... ... to reach it, a right to use such portion of the granted ... surface as may be necessary to obtain the coal: Wissler ... v. Hershey, 23 Pa. 333; Plitt v. Cox, 43 Pa ... 486; Turner v. Reynolds, 23 Pa. 199; McSwinney on ... Mines, 372 ... A ... ...
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Backhausen v. Mayer
...of no authority supporting it, outside of certain cases such as Logan v. Stogsdale, 123 Ind. 372, 24 N. E. 135, 8 L. R. A. 58;Wissler v. Hershey, 23 Pa. 333, and Zimmerman v. Cockey, 118 Md. 491, 84 A. 743, which seem to hold that the purchaser of the servient estate takes it subject to the......
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Bowers v. Myers
...Pa. 252. A right of way is lost by cessation of the necessity for it: March-Brownback Stove Co. v. Evans, 9 Pa. Superior Ct. 597; Wissler v. Hershey, 23 Pa. 333. A permissive use of the land of another for any length of time confers no rights of continued enjoyment: Bennett v. Biddle, 140 P......