Appeal from decree of Court of Common Pleas of Delaware County, June T., 1962, No. 2084, in case of Woodlawn Trustees, Inc. v. Margaret S. Michel.
R. Winfield Baile, with him James L. Shea, and Baile, Thompson & Shea, for appellant.
Reese A. Davis, with him Robert E. Porter, Theodore R. Griffith, and Greenwell, Porter, Smaltz & Royal, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Jones and Mr. Justice Cohen dissent.
This action was brought by Woodlawn Trustees, Inc., plaintiff-appellee, to restrain and enjoin the defendant from interfering with or obstructing plaintiff's use of an easement over defendant's land.
Woodlawn Trustees is the owner of a tract of land which lies east of and adjacent to a tract of land owned by defendant. In 1820, both parcels were held by a common owner. In that year, the common owner conveyed both parcels to different persons. In the conveyance of the easterly portion, now owned by Woodlawn, an easement was granted in the following language: "Together with the privilege of a road from the place of beginning at or near the place where it is now used, through the land [now defendant's land] sold by said assignees to Peter Hatton, William Green, unto Brandywine Road."*fn1 The conveyance of the westerly portion contained a reservation which provided: "Subject to the privilege of a road from the Brandywine Road at or
near the place it is now used through said land for the benefit of a sawmill and lot of ground [now Woodlawn's property] sold by said assignees to Reece Perkins."*fn2
The two adjacent tracts of land involved here share a common boundary along the west side of Woodlawn's tract and the east side of defendant's tract. The southern boundary of each runs along the Pennsylvania-Delaware state line. The easement claimed by Woodlawn is a roadway which begins at an old sawmill on its property. It runs southwest, dipping slightly into Delaware; it then turns northwest and recrosses the Delaware-Pennsylvania state line. There it enters defendant's property and continues through that property until it meets Brandywine Road (now Beaver Valley Road). Although Woodlawn now owns the property in Delaware through which the road passes, that property did not belong to the grantor when the easement was first created in 1820.
The sole question before us on appeal is whether a valid easement was created by the owner in 1820. Defendant argues that assuming that the road now in existence was the same road over which the easement was created,*fn3 that easement was a nullity from its inception since its benefit to the dominant tenement necessitated passage over land in Delaware which belonged, not to grantor, but to a stranger.
The mere fact that an easement, to be of any benefit to the dominant tenement, ...