Donald C. Waidlich and Beulah S. Waidlich, his wife, the plaintiffs herein.
The present dwelling house on the Waidlich property, the servient owner, was standing when the bank, the dominant owner, constructed its banking building in 1881. As indicated in Finding of Fact No. 10, the bank building was then constructed in such a way that at the first floor level there was a space of about 4 feet between the north wall of the bank building and the south wall of the Waidlich house. However, at the second floor level the bank constructed the second story of its building over and across the 4 foot space and attached the second story construction to the south wall of the Waidlich house. The joists of the second floor of the bank building were tied in with the south wall of the Waidlich house and the buildings were further connected by at least one stovepipe. The effect of this was to leave a covered passageway 4 feet wide underneath the second floor of the bank building and extending westwardly from Main Street a distance of 40 feet, which was the entire depth of the bank building. At the time of this construction the owners of the servient property were Frederick C. Waidlich and John Waidlich, the latter the grandfather of the plaintiff and at that time a director of the bank and continued as such up to the time of his death in 1902 or 1903, a period of at least twenty-one years. Harry Waidlich, son of John Waidlich and father of plaintiff, was in the employ of the bank approximately forty years, first as bookkeeper and later as assistant cashier.
It was stipulated that there was no writing of any kind which had any bearing on how the bank building came to be constructed in its present location over the alleyway and against the south wall of the Waidlich building.
The undisputed facts indicate the existence of the four foot wide area or alleyway between the properties, the second floor extension of the bank building over the area or alleyway to the Waidlich building with the joist and stovepipe connection, the intimate connection of the Waidlich family with the bank from the time of the bank construction and the continuous occupancy of the Waidlich building by the plaintiff and his ancestors for a period of seventy years without a word of dissent to the continuance of the easement above indicated.
The improvements in question were made by the bank in 1950 and were confined entirely to the first floor of the bank. They consisted of refacing or recasing the first story of the bank with brick, all of which was self-supporting. Nothing was done to the doorway between the bank building and the Waidlich building. Over the doorway was placed a cantilever of steel angle iron, 6 feet long, 4 inches wide, and one-half inch thick, extending from several feet under the brick casing in the front of the building thence over the doorway toward the Waidlich building. The cantilever is not in any way attached to the Waidlich building and the new brick casing is three-eighths of an inch from the Waidlich building. No additional weight was placed on the Waidlich building and no extension was made to the original easement by the improvement. So far as I have been able to observe from a careful review of the testimony, the situation, easement wise, is precisely the same as it was seventy-five years ago.
It is plaintiffs' contention that the use made of plaintiffs' property by the bank from 1881 was at all times permissive and at the will of plaintiffs and that an additional servitude was imposed on plaintiffs' property by the improvements made to the first story front of the bank in 1950. Defendant, on the other hand, claims that it has acquired by prescription an easement of the right to continue to maintain their bank building in its present form, which easement they contend was not in the least enlarged upon by the 1950 bank improvement.
In support of plaintiffs' claim that the use made by the bank of the Waidlich building was a permissive use, they point to the fact that the bank has produced nothing in writing to prove a grant; that the attitude of John Waidlich, who was a director at the time of construction of the bank in 1881, was that of a good neighbor; and that it could not be expected that Harry Waidlich would jeopardize his forty year employment by the bank by voicing a dissent to the use made of his property by the bank. Neither of these arguments carry conviction. Parenthetically, in this connection, it might be pertinent to inquire would the bank have gone to the expense of erecting this building in this manner in 1881 on a mere permissive basis? The facts here involved present a vastly different picture from a simple easement such as a mere pathway over another's land.
'An easement by prescription is based on the presumption that the right has been granted, but that the grant has been lost; and generally it may be acquired by the exclusive and uninterrupted use and enjoyment of the right for a period of time analogous to the time sufficient to acquire title to the soil by adverse possession.' 28 C.J.S., Easements, § 6, p. 641.
'The rule in the United States, subject to the limitation that, where the origin of the easement is known, a lost grant is not to be presumed, is generally well settled, in analogy to the statutory limitation which applies only to corporeal hereditaments, * * *, that the enjoyment of an easement as an incorporeal hereditament exclusive and uninterrupted for a time sufficient to acquire title to the soil by adverse possession, affords a conclusive presumption of a grant to be applied as a presumptio juris et de jure, and is sufficient to establish a prescriptive right, * * *, and the title so acquired is as effective and complete as one obtained by grant, * * *.' 28 C.J.S., Easements, § 6, p. 642.
Similarly, the Supreme Court of Pennsylvania in Shinn v. Rosenberger, 347 Pa. 504, 507, 32 A.2d 747, 748, said:
'* * * Title by prescription has its foundation in the presumption of a grant arising from the long continued use or possession of some right of common or other profit or benefit to be taken from or upon the land of another. Accordingly, the use must be such as to indicate that it is claimed as a right and is not the effect of indulgence or anything short of a grant. Gibbs v. Sweet, 20 Pa.Super. 275, 284. Mere user, no matter how long continued, will not give title. In order to give title the right must not only have been enjoyed without interruption for twenty-one years, but the enjoyment must have been adverse to the rights of the owner of the land. Bennett v. Biddle, 140 Pa. 396, 404, 21 A. 363. Open, notorious and uninterrupted user for a period of twenty-one years will be presumed to have been in pursuance of a full and unqualified grant, in the absence of evidence of some license, indulgence or some special contract inconsistent with the right claimed. Pierce v. Cloud, 42 Pa. 102, 114. * * *'