Appeal, No. 204, Jan. T., 1956, from decree of Court of Common Pleas of Lehigh County, June T., 1955, No. 5, in Equity, in case of Maranatha Settlement Association, Incorporated v. Howard Evans, Russell K. Marine et al. Decree affirmed.
W. F. Steigerwalt, with him Henry Villa and Reabuck & Villa, for appellant.
Paul A. McGinley, for appellees.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
The sole question involved in this appeal is whether a bathing right, granted in deeds to the purchasers of certain lots, constituted a license, an easement in gross, or an easement appurtenant. We are of opinion that the court below correctly decided that it was an easement appurtenant.
Evans-Yale Realty Corporation, being the owner of farm land in Lehigh County, prepared and placed on record a plan showing a division of the tract into building lots. It entered into agreements for the sale of these lots and executed deeds to the purchasers; one of the defendants holds title to a lot as an original purchaser, but all the other defendants are grantees of prior owners.
The corporation, having constructed a swimming pool on the tract, inserted in all its deeds to purchasers of the lots a provision that "The Grantee and his immediate family only, shall enjoy the free use of the swimming pool." However, plaintiff, Maranatha Settlement Association, Incorporated, which, several years later, received title to the tract from Evans-Yale Realty Corporation less the lots which had theretofore been conveyed, forbade defendants, the then owners of some of the lots, from enjoying the use of the pool, claiming
that the privilege was limited to the immediate grantees from Evans-Yale Realty Corporation or from plaintiff on the ground that it was merely a license or easement in gross and did not pass to the assignees of the original purchasers. Defendants, on the other hand, interpreted the grant of the privilege as extending to them, their heirs and assigns, claiming that it attached to the estates and not merely to the persons of the owners of the lots, in short, that it was an easement appurtenant.
The court below entered a decree holding that defendants and their families were entitled to the use of the pool, but subject to the reasonable rules and regulations adopted by plaintiff with reference thereto, and that they could not dispose of their rights to anyone other than purchasers of their respective properties. Plaintiff appeals from that decree.
The extent of the grant that was made in the deeds from Evans-Yale Realty Corporation of the privilege of bathing in the pool depends entirely upon the intent of the parties as determined by a fair interpretation of the language employed and consideration of all the attendant circumstances: DeSanno v. Earle, 273 Pa. 265, 274, 117 A. 200, 204; Finley v. Glenn, 303 Pa. 131, 137, 154 A. 299, 301; Lindenmuth v. Safe Harbor Water Power Corporation, 309 Pa. 58, 64, 163 A. 159, 161; Shawnee Lake Association v. Uhler, 131 Pa. Superior Ct. 146, 154, 198 A. 910, 914; 17 Am.Jur. 930, § 10. So viewing the question it seems utterly impossible to believe that the intention was to give the privilege of bathing in the pool only to the original purchasers of the lots as a mere easement in gross, much less a revocable ...