Harold J. Ryan, James Rick, 3rd, Reading, for appellants.
Wellington M. Bertolet, Frederick J. Bertolet, Bertolet & Bertolet, Reading, George B. Balmer, Snyder, Balmer & Kershner, Reading, for appellees.
Before Rhodes, P. J., and Hirt, Dithrich, Ross, Arnold, and Fine JJ.
[ 166 Pa. Super. Page 360]
In 1923 E. Richard Meining bought about 159 acres of land in the eighteenth Ward of the City of Reading. A mortgage on the entire tract given by him as part consideration for the purchase was assigned by his grantor to The Reading Trust Company. Shortly thereafter Meinig rehabilitated an ancient dwelling house on the premises and installed plumbing. A septic tank was constructed below ground east of the house, into which the wastes from the house flowed through an underground pipe. The effluent from the septic tank followed a natural southeastern drainage course. In 1928 Meinig laid out the tract into building lots and recorded a plot of the subdivision. The dwelling house occupies parts of lots 168 and 169. The septic tank is located east of the east line of lot 169 below ground wholly on the adjoining lot, 152. Meinig opened Gregg Avenue as shown on the recorded plan along the southerly line of the above lots, and in 1937, while he still owned the entire tract, installed a drainage system discharging the effluent from the septic tank southerly through lot 152 and across Gregg Avenue by means of subsurface terra cotta pipes and a french drain, into an old well just south of the road on lots 40 and 41 of the subdivision.
In 1937 The Reading Trust Company, for a consideration, released lots 168 and 169 from the lien of the above mortgage and in 1938 foreclosed on the mortgage and took title by sheriff's deed to the tract except the two lots previously released. Plaintiffs, the present appellants, bought lots 168 and 169 in 1944 from Meinig's grantee. In 1945 The Reading Trust Company conveyed all of the land, acquired by the sale, including lots 152, 40 and 41 to Berks Home Builders, Inc., the present owner. We will refer to this appellee as Berks. Gregg Avenue had not been accepted by the city as a public street and the conveyance included the road bed of
[ 166 Pa. Super. Page 361]
that, as well as other streets indicated on the recorded plot.
In April 1946 Consumers Gas Company while digging a trench for a gas line broke the terra cotta drain pipe in Gregg Avenue, and the City of Reading, in subsequently laying a water main in the street disturbed and interfered with the proper functioning of the french drain in the highway. In 1946 Berks, in the development of their land, built dwelling houses on lots 40 and 41 fronting on the south line of Gregg Avenue. It was contended by plaintiffs that Berks in bringing Gregg Avenue to grade and rolling the surface had completely closed the french drain in the street and rendered it wholly inoperative as a means of carrying the effluent of the septic tank across Gregg Avenue. Plaintiffs in this action prayed for a mandatory injunction compelling the defendants to re-establish, in good working order, plaintiffs' sewage system. The lower court affirmed the findings and conclusions of the chancellor, and, in refusing injunctive relief, dismissed the bill as to all defendants. Plaintiffs contend that the facts establish an implied easement in law in favor of their lots for sewage disposal through the lands of Berks as the servient tenement.
When E. Richard Meinig constructed the sewage system to serve the dwelling house, he imposed a quasi easement for the purpose on his other land through which the pipes and drains conveyed the effluent from the septic tank. But when the plaintiffs bought lots 168 and 169 in 1944, title to other parts of the tract, including all of the land formerly subjected to the quasi easement by Meinig, was in The Reading Trust Company by virtue of a sheriff's deed, on foreclosure of its mortgage. There was no reference to the sewage disposal system nor any easement in any of the conveyances in the chain of title of either the plaintiffs or of the defendant Berks. The easement contended for by appellants
[ 166 Pa. Super. Page 362]
therefore must have existed by implication, if at all. We had occasion to refer to the tests which determine an implied easement, in Heffley v. Lohr, 149 Pa. Super. 586, 27 A.2d 275, 277, and we quoted the well-settled rule 'that where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another part, which servitude, at the time of the severance, is in use and is reasonably necessary for the fair enjoyment of the other part of the estate, then upon a severance of the ownership, a grant of the right to continue such use arises by implication of law.' Easements by implication require no deed or writing to support them and they pass by a conveyance of the estates to which they are appurtenant. Lauderbach-Zerby Co. v. Lewis, 283 Pa. 250, 129 A. 83. But under all of the authorities an implied easement can arise only where the servitude is of a permanent nature, continuous, and sufficiently apparent to give notice of its existence. A use must be apparent to be the subject of an implied easement on the severance of ownership. Such use however ...