Hettrick v. Eby
Hettrick v. Eby
Opinion of the Court
Opinion by
William H. Eby and Cornelius Feese in 1878 were the owners of five contiguous lots of ground in the Borough of Shamokin. The lots fronted on Fifth street and extended in an easterly direction to Carbon street. Eby
The understanding that the alley should be open forever between Malick and Garman and the grantors, Eby and Feese, in connection with the reservations in the several deeds made to them by these grantors would not only be evidence tending to show a dedication, but it would be sufficient to raise an implied covenant that the alley should be so continued for the benefit of these purchasers, without which these lots would not have beén bought. Malick was without doubt a competent witness to testify as to this understanding. He was in no way interested in the outcome of the litigation as he had parted with all of his title many years ago. The evidence as to this understanding was admissible and sufficient in explanation of the somewhat ambiguous language used in the deed of Eby and Feese in relation to the alley. The subsequent conduct of the grantors in permitting the alley’s continued use was evidence tending to show their construction of this language. “Where an easement or other right is not expressed and is sought to be implied as attached to the grant of the fee, the same must clearly appear from the intention of the parties as shown by the terms of the grant, the surroundings of the property and the other res gestae of the transaction.” Union Burial Ground Society v. Robinson, 5 Wh. 18; Fitzell, v. Philadelphia, 211 Pa. 1. And, as this court said in an opinion recently handed down in Rhoads v. Walter, ......“The language in his deed is of great importance, but we must consider the conditions on the ground at the time the conveyance is made if we are to ascertain the real intention of the grantor. In a conveyance designating a street as a boundary, it is always open to proof to show that the street was unopened and unused, and the grantee’s right was limited to the edge or side' of the street. So with respect to the alley in question. As intimated by Brother Porter, in Sharpless v. Willauer, 39 Pa. Superior Gt. 205, the conditions actually existing on
The measure of damages for a trespass of a temporary nature is the cost of restoring the property to its former condition. Unless such cost would exceed the value of the property, in which case the value is the measure of damages: Lucot v. Rodgers, 159 Pa. 58; Hershey v. H. S. Kerbaugh, Inc., 242 Pa. 227; Welliver v. Pennsylvania Canal Company, 23 Pa. Superior Ct. 79. Compensation for the injury complained of is what is sought. Plaintiff should have had the obstruction to the alley removed. She cannot recover for a coal bin erected in her cellar to meet the necessity caused by the obstruction. Whatever inconvenience she was put to, or loss which she sustained by reason of the obstruction, would be competent proof of the measure of damages, subject to the general rule as above mentioned. As this item of damage was accurately expressed in the testimony, substantial justice will be done by modifying the verdict twelve dollars, the amount the coal bin cost. The charge of the court fairly presented the appellant’s case. There is nothing in it prejudicial to her interest, nor did the court abuse its discretion in refusing a new trial, and unless it did so this court will not interfere.
The judgment as modified is affirmed at the cost of the appellant.
Reference
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- Road law — Alley—Obstruction of alley — Damages—Deed—Reservation in deed. Where property is purchased that has been subjected to the easement of an alley in existence at the time the property adjacent thereto was owned by a common grantor and reserved in the conveyances of adjoining lots with an understanding with the common grantor that the alley should be open for continuous use, and the alley has been used continuously by the public from the date of such ownership to the date of purchase and buildings had been erected on the land purchased, conforming to the lines of the alley, the purchaser is affected with actual notice of the alley’s existence and the property purchased will be subject to the easement, although no reservation of the alley appears in the purchaser’s deed. The measure of damages for the obstruction of an alley is the cost of restoring the property injured to its former condition, unless such cost would exceed the value of the property, in which ease the value is the measure of damages.