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TOSH v. WITTS. (04/18/55)

April 18, 1955

TOSH, APPELLANT,
v.
WITTS.



Appeal, No. 101, March T., 1952, from decree of Court of Common Pleas of Beaver County, March T., 1950, in Equity, No. 4, in case of John L. Tosh et ux. v. Harry Witts et ux. Decree reversed.

COUNSEL

Wayne S. Luce, for appellants.

Lee E. Whitmire, Jr., with him Homer H. Swaney, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 381 Pa. Page 256]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

This is an appeal from the lower court's refusal to order defendants to remove a fence which they had erected in order to block an alleged right of way of plaintiffs over defendants' land. The court dismissed the bill of complaint at the conclusion of plaintiffs' testimony.

Fourth Avenue intersects Fourth Street at right angles in the Borough of Freedom, Beaver County. Fourth Avenue runs in a northwesterly and southeasterly direction, Fourth Street from northeast to southwest. Plaintiffs own several contiguous lots fronting on Fourth Avenue southeast of Fourth Street, and they also owned a lot fronting on Fourth Street southwest of Fourth Avenue. On one of their Fourth Avenue lots they erected a two-story building containing on its upper story five garages which opened out onto Fourth Avenue, but, because of a sharply descending grade toward the southwest, four garages which were on the lower floor and which, being below the

[ 381 Pa. Page 257]

    street level of Fourth Avenue faced downhill, were accessible to motor vehicles from Fourth Street only through the rear of the lot. Accordingly plaintiffs had laid out and for many years maintained and used a driveway extending from Fourth Street southeastwardly toward the rear of the Fourth Street lot and then in a northeasterly direction upgrade to the garages on the first floor of the Fourth Avenue building.

Plaintiffs sold and conveyed the Fourth Street lot to defendants. The deed of conveyance was prepared by a loan association to which defendants had applied for a mortgage. When it was presented to plaintiffs for execution they found that no right to the use of the driveway had been reserved therein and they therefore returned it for correction. As redrafted it contained a clause the wording of which is the principal subject of the present controversy. As recorded in the Recorder's Office it reads as follows: "Subject to the driveway now existing on the premises and extending from Fourth ... to the rear of the premises herein described." But when the deed itself was produced by defendants at the hearing before the Chancellor it appeared plainly that the blank space after the word "Fourth" had originally contained the word "Avenue," which, being obviously erroneous, had been erased and the word "street," and above it the abbreviation "St.," inserted in pencil. How this came about does not appear in the evidence. At any rate the deed was delivered to defendants and they went into possession of the Fourth Street lot. Plaintiffs continued for more than two years thereafter to use the driveway over the lot as theretofore in order to gain access to the lower floor garages of their Fourth Avenue structure, but then defendants, denying their right thereto, erected a wire-rope fence across the driveway, thereby provoking the institution of the present action.

[ 381 Pa. Page 258]

From plaintiffs' testimony it appears that the driveway was clearly and visibly laid out on the ground. It was paved with concrete where it started at the curb line of Fourth Street and the rest of it was covered with slag and ashes all the way up the hill to plaintiffs' garages; it was described as being about 12 to 14 feet wide at its Fourth Street end, that it then ran approximately of that same width in a southeasterly direction parallel with defendants' house on its downhill side for a distance of about 40 feet, and then turned in a northeasterly direction between the rear of defendants' house and the front of their garage on the rear of their lot, widening out after this turn to about 30 feet. The driveway being thus sharply defined it would seem that plaintiffs had brought their case well within the established principle*fn* that, where an owner of land subjects part of it to an open, visible, permanent and continuous servitude or easement in favor of another part and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be, and this irrespective of whether or not the easement ...


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