Appeal, No. 22, Jan. T., 1950, from decree of Court of Common Pleas of Lackawanna County, Sept. T., 1948, No. 4, in case of Nallin-Jennings Park Company v. Benjamin Sterling, Jr., et ux. Decree reversed.
Charles Nealon Bourke, for appellant.
Will Leach, with him J. Harry Morosini and Joseph J. Cimino, for appellees.
Before Drew, C.j., Stern, Stearne and Bell, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeal is from a decree in equity dissolving a preliminary injunction and dismissing the bill seeking to restrain alleged violations by the defendants of the grant of a right of way or easement over plaintiff's land.
Plaintiff (a corporation) and the defendants are the respective owners of contiguous tracts of land in Moosic Borough, Lackawanna County. A concrete wall is maintained between the properties. Upon each tract an amusement park is operated, separately and independently, Both under the name of Rocky Glen Park. Defendants' land consists of a tract of 180 acres, of which 10 acres are devoted to recreation and amusement. Approximately 250,000 persons are entertained in defendants' park annually; $250,000 has been invested in equipment, viz.: merry-go-rounds, miniature railways, restaurants, bath houses, etc.
The land of the defendants does not abut upon a public road while plaintiff's does. The only means of access to the public road to and from the defendants' land is over plaintiff's land. The bulk of the patrons to defendants' park are passengers from an electric traction line which bounds defendants' land. Other patrons reach the land from a parking space owned by the defendants from which they walk to the park (not over the land of the plaintiff). The parties to this suit have had other litigation relative to the use and occupation of the respective premises. On November 21, 1945, they entered into a written stipulation whereunder the plaintiff agreed to execute a grant or deed concerning a right of way from the public road of plaintiff's land to defendants' park. In pursuance to such stipulation, the plaintiff executed and delivered a deed dated January 21, 1946, wherein plaintiff granted and conveyed a right of way over its land in the following language:
"... unto [defendants] their heirs, successors and assigns, for themselves, concessionaires in their park, employees, tenants and suppliers of materials for maintenance and operation of the various buildings and amusement devices on the land of the said [defendants], the right of ingress and egress at all times over the land herein described and delineated upon a map attached hereto and made a part hereof, leading from a certain road or highway running through the Village known as No. 4 Village in the Borough of Moosic to the land of the said [defendants] and within the area described herein and defined in said map, [the right conveyed being the right to perpetual use of the said piece or parcel of land for and by the parties named]."
The Habendum clause in the grant reads: "To have and to hold the said right of way... hereby granted... as herein defined...." (emphasis supplied)
The dispute between the parties concerns the construction of the words creating the easement. Plaintiff contends the words create but a limited easement restricting the use of the right of way to those individuals who are named in the grant. Defendants, on the contrary, maintain that the words create a right of way, appurtenant to their land, which enables the permissive use of such right of way by all individuals acting through defendants or their successors. The controversy is ...