Cannon v. Boyd

The opinion of the court was delivered, May 17th 1873, by

Where a continuous and apparent easement or servitude is imposed by the owner on one portion of his real estate for the benefit of another, the law is well settled that a purchaser at private or judicial sale, in the absence of an express reservation or agreement on the subject, takes the property subject to the easement or servitude: Seibert v. Levan, 8 Barr 383 ; Overdeer v. Updegraff, 19 P. F. Smith 110, and cases there cited. The sheriff sold and conveyed the lots to the parties in this case without reference to the existence of the alley on the lot purchased by the defendant; but the evidence shows that the alley was open and apparent at the time of the sale, and that there was a gate leading into it from the lot purchased by the plaintiff, clearly indicating that it was used in common by the tenants of both lots. It also appears from the evidence that the alley was laid out and opened by McCabe, the former owner of the lots, and that it was used in common by the occupants thereof for a period of more than ten years prior to the sheriff’s sale¡ The court below was, therefore, clearly right in declining to charge that the sheriffs *182sale and deed vested the soil of the alleged alley in the defendant, clear of the easement claimed by the plaintiff; and in charging that the only question in the case is, What was the condition of these two properties at the time of the sheriff’s sale ? If the condition of the properties at the sheriff’s sale was such as to indicate that the occupants of the property, now owned by the plaintiff, used the alley in question and had a right to do so, the verdict should be for the plaintiff.

There was no error in refusing leave to ask the plaintiff’s agent whether he purchased the property expecting or believing that he got a title to the alley. The expectation or belief of the agent could not affect the plaintiff’s title.

Judgment affirmed.