Appeals, Nos. 154, 155 and 198, Jan. T., 1953, from decree of Court of Common Pleas No. 5 of Philadelphia County, March T., 1952, No. 2655, in case of George Kanefsky et al., v. Dratch Construction Company, Parkman Homes, Inc., Harry Fishman and Samuel Park, trading as Fishman & Park. Decree, as modified, affirmed.
David B. James, Jr., with him Henry Panfil and Moore, Panfil & James, for appellants.
Simon Mustokoff, for appellant.
Charles M. Solomon, with him J. Victor O'Brien, Nathan L. Posner and Fox, Rothschild, O'Brien & Frankel, for appellees.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
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, Phil-Ellena Street on the south, Woolston Avenue on the west, and Vernon 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 Phill-Ellena Street 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 constructed
houses along the Rugby Street frontage and sold them to various home buyers, among whom were the present plaintiffs. The deed to each of the purchasers included the area of the driveway in the rear of the property conveyed but not the three feet beyond the driveway.*fn1 Every deed granted the use of the driveway and also contained the following reservation in the habendum clause: "And Also 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, corporation or corporations to whom all or any part of the remaining ground owned by it may at any time hereafter be sold and conveyed."
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 ...