Kanefsky v. Dratch Construction Co.
Kanefsky v. Dratch Construction Co.
Opinion of the Court
Opinion by
This controversy is over defendants’ right to use a driveway which is located in the rear of plaintiffs’ houses.
Dratch Construction Company, one of the defendants, owned a plot of ground in the City of Philadelphia constituting the easterly half of a square city block bounded by Rugby Street on the east, PhilEllena Street on the south, Woolston Avenue on the west, and Yernon Road on the north. Its property ran for a distance of about 729 feet along Rugby Street and extended in depth toward Woolston Avenue for a distance of approximately 115 feet. In 1948 it constructed on its land a 15 foot driveway extending between Phil-Ellena Stréet. and Vernon Road and paralleling, at a distance therefrom of three feet, the boundary line between the Dratch property and the Woolston Avenue property to the rear. It then con
The parties do not agree as to the reason for the retention by Dratch Construction Company of the three foot strip. Plaintiffs claim that Dratch told them it was for their protection so that the occupants of the Woolston Avenue properties in the rear would not be able to use the driveway but would have to build a separate one for themselves. How plaintiffs would be better protected in that regard by having Dratch Construction Company retain title to the strip instead of deeding it to plaintiffs is not apparent. Dratch denies having made any such statement. In 1950 Dratch Construction Company sold and conveyed the three foot strip to Cora E. Milligan, who then owned the remaining half of the block, by a deed which contained the following grant: “Together with the free and common use, right, liberty and privilege of said Fifteen feet wide driveway as and for a passage
Much argument pro and con is devoted by the parties, to the. question whether Dratch- Construction Com-pa,ny was guilty of. deception and fraud in its. dealings with plaintiffs by concealing from them its al
The real and determinative question is in regard to the interpretation of the reservation in the deed from Dratch Construction Company to plaintiffs of the right of the grantor to grant the use of the driveway to any persons to whom all or any part of the remaining ground owned by it might at any time thereafter be sold and conveyed. This language is not ambiguous, and it must therefore be construed according to its clear and literal terms and not as colored or amended by any oral conversations between Dratch and the plaintiffs or by any alleged intention of Dratch, secret or revealed. As was stated in Nallin-Jennings Park Co. v. Sterling, 364 Pa. 611, 615, 73 A. 2d 390, quoting from Witman v. Stichter et al., 299 Pa. 484, 488, 149 A. 725, 726: “ ‘ “In construing the grant or other instrument whereby the easement is created, the document itself, and that only, can, in the first instance, be looked at to discover the extent and nature of the agreement and the terms of the grant. If on the face of the document no doubt arises that the words are used in their primary sense, and if, read in that sense, they are plain' and unambiguous, the matter is concluded”: Gale on Easements, page 80; . . . The terms of the grant, as they can be learned either by words clearly expressed, or by just and sound construction, will regulate and measure the rights of the grantee: And in Liquid Carbonic Co. v. Wallace, 219 Pa.
It is first to be noted that, as all the parties agree, the reservation of the right to grant the use of the driveway to persons becoming the purchasers of other ground owned by the grantor was not the reservation of a right to grant an easement in gross but only an easement as an appurtenance to such other ground: Ulrich v. Grimes, 94 Pa. Superior Ct. 313, 316.
What was the “remaining ground” then owned by the Dratch Construction Company? It owned the Bugby Street half of the block, and it is obvious that, as it sold off lots from out of this area to home buyers and gave to each of them an easement for the use of the 15 foot driveway over the properties of the other purchasers, it was naturally obliged to reserve in each deed the right to grant to such other purchasers the use of the driveway over the lot of the grantee in that particular deed. In addition to the Rugby Street ground remaining in its ownership Dratch Construction Company, having retained title thereto, owned the three foot strip to the rear of the driveway; therefore the use of the driveway — for what such easement might be worth — became appurtenant to that strip also. No other ground was owned then, or indeed at any later time, by Dratch Construction ■ Company, and therefore to no other, ground than as thus státed did the reservation of the right to grant the use of the driveway apply.
Whether or not there was, as alleged, any fraud on the part of Dratch Construction Company, the court should not have deleted from plaintiffs’ deeds the clause reserving to the grantor the right to grant the use of the driveway to persons who might thereafter purchase all or any part of the remaining ground owned by it, since that reservation was, and is, necessary, as previously pointed out, to assure to each of the purchasers of the houses on Rugby Street the right to use the driveway over the properties of the other purchasers.
Dratch Construction Company retained title to the three foot strip only for a distance of approximately 631 feet northerly from Phil-EUena Street. Beyond that point to Vernon Road its deeds to purchasers conveyed title all the way to the boundary line of the property to the rear.
Subsequently the 35 remaining" owners and occupants of'.the houses in the Rugby Street row Were'allowed to intervene as party-plaintiffs and..4 purchasers of the .houses' on-' Woolston Avenue, as parties defendants. . :,
Watson v. Bioren, 1 S. & R. 227, 230; Kirkham v. Sharp, 1 Wh. 323, 334; Lewis v. Carstairs, 6 Wh. 193, 207; Shroder v. Brenneman, 23 Pa. 348; Coleman’s Appeal, 62 Pa. 252, 275; Schmoele v. Betz, 212 Pa. 32, 36-38, 61 A. 525, 526, 527; Percy A. Brown & Co. v. Raub, 357 Pa. 271, 284, 285, 293, 54 A. 2d 35, 42, 46; Hollenback v. Tiffany, 50 Pa. Superior Ct. 297; Shawnee Lake Association v. Uhler, 131 Pa. Superior Ct. 146, 156, 198 A. 910, 914, 915; Walker v. Walker, 153 Pa. Superior Ct. 20, 27, 28, 33 A. 2d 455, 459; Davis v. Winsor, 165 Pa. Superior Ct. 212, 214, 215, 67 A. 2d 569, 570, 571; Myers, Trustee, v. Birkey, 5 Phila. 167, 170; Walker v. Gerhard, 9 Phila. 116.
Dissenting Opinion
Dissenting Opinion by
Plaintiffs, grantees of Drateh Construction Company, prayed (1) for an injunction, and (2) for a reformation of their respective deeds by deleting therefrom Dratch’s right to grant the use of the present 15 foot driveway.
Drateh Construction Company, owners and developers of a large piece of ground fronting on Rugby Street, conveyed parcels of said ground to plaintiffs “reserving unto the said Grantor, its Successors and Assigns, the right and privilege of granting the use of the aforesaid driveway to any person or persons, . . . to whom all or any part of the remaining ground pioned by it may at any time hereafter be sold and conveyed ” Could any reservation be clearer or more explicit?
The question involved is: Did Drateh Construction Company have a legal right to grant to these defendants the use of the present 15 foot driveway?
It is important to note at the outset that the majority opinion does not assert any fraud on the part of Drateh or any party in this case; and that those defendants who claim title from the owner and common grantor, Drateh, are innocent purchasers for value, — without notice of any claim by plaintiffs or by anyone questioning or seeking to limit or invalidate the clear and explicit reservation — and that all the deeds containing the aforesaid reservation of the right to grant the use of the driveway were recorded. Nevertheless, plaintiffs contend that Drateh, the common grantor, instead of deeding to them the 3 foot strip of ground bordering their land, retained title thereto
That our construction accurately evidences the intention of the parties is further confirmed by the fact that little more than a year thereafter Dratch Construction Company, unable to purchase the adjoining ground, sold and conveyed the 3 foot strip to the owner of this adjoining contiguous remaining half of the block by a deed which contained the following grant: “TOGETHER with the free and common use, right, liberty and privilege of said Fifteen feet wide driveway as and for a passageway, driveway and watercourse at all times hereafter forever, for any buildings hereafter built by the purchaser, or nominee, his or her heirs and assigns, on Woolston Avenue between Yernon Road and Phil-Ellena Street or on the Northwesterly side of Phil-Ellena Street between Woolston Avenue and said Fifteen feet wide driveway, this use to be for its entire distance from PhilEllena Street to Yernon Road, . . . .”
The authorities cited by the majority that “an easement cannot be extended by the owner of the dominant tenement to other land owned by him adjacent to or beyond the land to which it is appurtenant, [where] such an extension would constitute an
I would reverse the decree of the Court below and dismiss plaintiffs’ Bill of Complaint.
Reference
- Full Case Name
- Kanefsky v. Dratch Construction Company, Appellant
- Cited By
- 22 cases
- Status
- Published